*1 STATE of Arkansas M. BROWN v. Jaye
and Michael C.Williams
CR 03-914
Supreme 25, 2004 delivered March Opinion denied May [Rehearing 6, 2004.] *3 Beebe, Gen., Mike Gen., K. Att’y by: Ass’t Clayton Hodges, Att’y for appellant.
Dale for W. Finley, appellee. Robert L. The State of Arkansas appeals Brown, Justice.
an order contraband seized suppressing home of Brown and appellees Jaye Michael The Williams. State raises two on that the circuit points (1) court erred in appeal: that Article holding 15, of the Arkansas Constitution that advice requires to refuse consent be law given by enforcement officers before a consensual search be found to be may that the voluntary; (2) circuit court erred under the same constitutional holding provision that officers must disclose all information police known to them before consensual search be found to be We hold voluntary. that the circuit court concluded that a correctly home dweller must be advised of his or her to refuse in order to validate a consensual search under the reason, Arkansas Constitution. For that we affirm. about ten o’clock at that on facts are August
The District the Fifth Drug three agents morning, Judicial Casto, Ridenhour, Arm- and Shawn (Chris Johnny Task Force Brown and Williams residence of appellees strong) approached received from so because of information did in Russellville. They were involved and Williams sources Brown two anonymous trailer had become child inside the and that a small in drug activity the door to Upon reaching ill due to manufacturing. drug home, familiar chemical odor. smelled strong trailer they door, answered. and Brown knocked oh Ridenhour Agent had information told her that three agents agent or there was other there was marijuana someone growing possibly wanted to investi- at the residence and that use they illegal drug gate. She closed the to wait a minute. asked the
Brown agents Ridenhour a short while later. Agent door but then returned read: form to which sign her with consent-to-search presented *4 form. Brown and Officer Ridenhour the consent Jaye Jaye signed A Brown did circle “vehicle” “residence.” search not residence the ensued. agents Williams, that Michael who
At apparently point, appellee the had been bedroom. There was also emerged asleep, the child trailer home. observed Agent present Armstrong evidence of use. Ridenhour looked methamphetamine Agent saw bedroom and evidence of used manufacture precursors arrested, Brown and Williams were and methamphetamine. Ridenhour Agent and received a search warrant to
subsequently sought residence and seize evidence or contraband found. any executed, The search warrant was and evidence of methamphet- amine manufacture and as well as usage marijuana growth was seized. Brown statement that same possession signed day which said that Williams was methamphetamine manufacturing and that she told him to Williams also a statement and stop. signed admitted to the manufacture and use of He methamphetamine. said in his statement that he had been with Brown for about living four Brown and years. Williams were later with manufac- charged ture of of methamphetamine meth- marijuana possession with intent to deliver. amphetamine Brown and Williams filed motions to separate suppress seized, because, contended, evidence it was seized as they part an search. Williams an raised the issue of invalid illegal specifically search under Article of the Arkansas Constitution. A ensued before the circuit court. Brown at hearing testified that she told that the was wanted hearing agents permission search for She she said the consent marijuana. form because signed she she had to do so. thought She testified: I had no “Thought choice it.” but to added She that she did not that sign know she could “no” and not it. Williams also testified that say sign that announced were agents for they searching marijuana. Ridenhour testified at the that Agent did hearing agents
not tell Brown that she not was the consent form. required sign Agent testified that it not was Task Armstrong Drug Force policy to advise did have not to consent occupants they to search. Ridenhour Agent testified that he told Brown that the search would be for and “other marijuana use of He illegal drugs.” however, admitted, was not mentioned. methamphetamine He testified that did he not advise her that she could refuse to sign the form. 13, 2003, On the circuit court issued a letter opinion, June
which read: The facts this case represent concerns ArkansasSupreme Court had in the recent caseof Griffinv. Justices 788, 67 S.W.3d582.
In the caseOfficer present Ridenhour testifiedabout phone call ofa him childat advising defendants’residence sickbecause being drugs. drug task force went to the mobile home residence. OfficerRidenhour talked with defendantBrown and told her he *5 had infonnationthat there was the marijuana in residence thatit sick no mention a child being There was there. being was grown a written consent officers obtained The drugs. because residence. and entered the Brown defendant for search have cause a did not probable officers It is undisputed was obtained. time a consent to search at the warrant toway in this caseis a simply talk” used “knock and procedure in a obtaining enforcement officers on law placed the burden avoid warrant. search stating if were used deception purpose that
It would appear not be an then a consent obtained would search of a requested valid consent. informed and officers a “knock and talk” policy police
This Court feels that if to refuse challenge only survive a constitutional can consent is obtained. or is before explained consent in writing factors, this Court feels that consent the above upon Based valid; therefore, the case not motions obtained this was search both defendants should be by granted. filed suppress motions to order was entered that same two An day granting suppress.
I.Jurisdiction this We first address whether court has jurisdiction Rule of hear this State to Arkansas pursuant Appellate appeal that do 3. The State contends we because Procedure —Criminal Article of the Arkansas Constitution appeal implicates and whether that section of our state constitution requires home dweller be advised of the to refuse to a consent with the State that this We being agree prior given. search-and-seizure issue raises involving appeal significant known as “knock and talk.” it is matter Accordingly, procedure which concerns the correct and uniform administration criminal which this court. See Ark. law review R. requires App. Pruitt, P. —Crim. also State v. 3(c). See 64 S.W.3d This has to review matter. jurisdiction II. Consensual Search It The State raises two issues to a consensual search. relating first contends that the Arkansas Constitution does not require officers must advise home dwellers that have the police they *6 466
to refuse consent to search. the claims that State our state Secondly, constitution does not officers to disclose all infor- require police mation known to them before a consensual search take may place. State, the the circuit the case at hand According judge decided to the evidence seized for both reasons. Because suppress we conclude that the circuit construed the correctly Arkan- judge sas Constitution to enforcement law officers to advise require search, home dwellers of their refuse to consent to a we need not address the second raised the by State. point
This case the second presents for this court to opportunity consider whether the known as “knock and talk” police procedure is 2, under Arkansas Constitution Article constitutionally permissible 15,.in State,
Section
two
v.
347 Ark.
past
years. Griffin
This recently discussed the constitutional ramifications warrantless entries into homes: private A entry warrantless into home is un private presumptively Wisconsin, reasonableunder the Fourth Amendment. Welshv. 466
467
State,
(2002);
This
the
se
of the Fourth Amendment
is not
violative
procedure
per
State,
767,
v.
Ark.
67
United States Constitution.
See Scott
347
Pendleton,
v.
Despite this court has made it clear that the search-and- abundantly though 2, 15, Constitution seizure Article Arkansas language § Amendment, not of the Fourth we are similar to words very federal the Fourth Amendment bound by interpretation Picado, See, 349 Ark. when our own law. v. e.g.,Jegley interpreting 468
600,
Sullivan,
647,
It is true that in Stout Ark. S.W.2d vehicle, which involved of motor this court stated that we would Article in the same manner interpret as United States Court the Fourth Supreme interpreted Amendment. But the Stout case involved search of a motor vehicle, and noted we in Stout that it seemed especially appropriate *8 to follow Fourth Amendment because the interpretations, in interests and difficulty rules for and balancing search setting seizure of automobiles. The case before us the of a concerns home, which is different and which invokes altogether Arkansas’ and steadfast adherence the to of the longstanding home sanctity and unreasonable protection against intrusions. government 15, 2, Article of the Arkansas rel- Constitution reads in § evant part: The of the of this State to secure people be in their houses, and persons, papers effects unreasonable and against searches violated; seizures shallnot be and no warrant shallissue except upon cause, affirmation, probable by oath or and supported particularly the be describing to searched and the place or be person to thing seized.
Ark. Const. art. 15. This was as the provision adopted part § 1874 Arkansas Constitution and is almost identical to the Fourth State, Amendment. In we traced the of this supra, history Griffin constitutional and the behind it: reasoning provision castle, that a man’s home is his the principle and that even home, King unreasonably from prohibited upon that intruding
469 in culture of well-developed rough-and-ready was particularly frontier, Territory. In no less in the Arkansas and pronounced Constitution, admitted state of our newly 1836 people our in language: succinctly following this principle expressed in their persons, shall be secure 9. That people houses, searches from unreasonable and possessions papers warrants, seizures, officer be whereby that general any to search without evidence commanded suspectedplaces committed, not named fact or to seize any persons person by whose are not described supported offenses particularly evidence, not are andshall be dangerous liberty, granted. added). Id. (emphasis had Our Constitution
347 Ark. at S.W.3d at 585. that the with our 1868 Constitution same It was people provision. identical constitutional adopted language substantially present provision. dweller’s
This court
home
emphasized
State,
in Fouse v.
Ark.
We vein imposed proceeded for in their bedrooms unreason against greater protection persons Picado, and struck able interference Jegley supra, government down the state’s statute as unconstitutional when applied sodomy Picado, held that the adults in their homes. In we consenting *9 in is a the Arkansas Constitution funda privacy implicit a state interest to override mental which compelling requires of our citizens in it. This rich tradition of protecting privacy their our from federal common law in homes deviating justified in our homes. Picado with to constitutional protection respect Indeed, of home is zone legal privacy person’s principle our state constitution is as under sacrosanct as any right principle Picado, v. and law. v. case See supra; supra. Jegley Griffin has same to the instant case. Arkansas analysis clearly applies embraced a for in citizens their heightened protection privacy seizures, homes unreasonable searches and as evidenced against constitution, statutes, law, our state common and criminal rules. it is clear that this court deviate from federal
Though the more relevant is when should we do so? precedent, question Without slavish of federal would question, following precedent this render court’s a mirror of federal merely opinions image which would with it a certain of carry jurisprudence, abrogation our our own state constitution duty and follow our interpret Yet, own we to a state law. admit concern about too deviating much federal based on our state constitu- precedent solely tion. A balance must be struck between the two. proper Justice Souter, David he when served as on New justice Hampshire Court, it said best: Supreme ... It is the need of court for the every appellate participation
bar in the of to think and process trying sensibly comprehensively about the that the questions judicial has been power establishedto answer. Nowhere is the need than in the field of greater State law, constitutional where we are asked often so to confront ques- tions that have been decided already under National Constitu- tion. If we too much reliance on federal place we will precedent shadows; render the little, State rules a mere row of if we too place we will render State practice incoherent. 68, 82-83, State v. 129 N.H. Bradberry, A.2d 1389 (1986) (Souter, discussion, For a J., concurring specially). seeRobert general Brown, L.- State Law: The Expanded Rights Through United States App. Court ShowsState Courts The Supreme Prac. & Process Way, J. 505 (2002). This state’s constitutional and state law history preexisting of a home
regarding
dweller in his or
privacy rights
her home
combine to
our decision to discard federal
support
precedent
an
of our state constitution
adopt
interpretation
with
compatible
Gunwall,
See,
state law.
State
106 Wash. 2d
e.g.,
. . . that when adopt following police knock for the purpose obtaining officersconduct a and talk home, avoid the thereby necessity consent to search warrant, home, must, inform obtaining they entering prior lawfully whom thathe or person sought consentis she time, revoke, can they any refuse consentto searchandthat at the consentthat and canlimit of the consent they give, scope certain of the home. The failureto these provide warnings, areas home, thereafter. given vitiates prior entering any 118-19, P.2d at 934. The absence of warnings Id. at required infirm under the rendered Washington procedure constitutionally Constitution. *11 State, v.
In Graves
Early Jersey Supreme United States Court decision of v. Bustamonte, Schneckloth Supreme controlled state court decisions in their construction of supra, only 349, the Fourth Amendment. v. SeeState 68 Johnson, 346 A.2d N.J. 66 For the search-and-seizure of the purposes provision Constitution, New Schnecklothwas and not the state Jersey binding, of New was free to under standard state law. Jersey higher impose The New did Court so and Jersey Supreme its state interpreted constitution to a home dweller’s require to right knowledge refuse consent as an essential element of consent to any voluntary search.
A fourth court has noted that appellate United though it, States Court has not “the better Supreme required practice a knock and talk would be for the conducting investigation officer to himself and advise the identify his occupant right deny State, v. 794 N.E.2d entry.” Ct. Hayes (Ind. App. 2003). added, The the court would procedure, minimize needless sup- motions, pression and hearings, appeals.
We are convinced that the courts in these states have reached the correct conclusion. As in the case of the State of Washington, our tradition in Arkansas is “rich right-to-privacy compel- Picado, v. 349 Ark. at ling.” at 80 S.W.3d Jegley 349-50. We have held that there is a fundamental in our homes privacy in the Arkansas Constitution and that implicit fundamental violation of that any review and a requires strict-scrutiny compel- state interest. ling The dissent cites a raft of cases where this court has adhered to the Schnecklothv. Bustamonte standard when interpreting the Fourth Amendment to the United States Constitution. Only cases, one of those v. 557 S.W.2d King Bustamontestandard when adopted Article interpreting 15, of the Arkansas Constitution with to a respect knowing from our holding King nowWe depart to search. consent for the extent it stands proposition case to the overrule refuse a her of his or be need not homeowner apprised to search that a valid consent as a to search prerequisite home. casesbased on overrules Court United States Supreme See, some e.g., with regularity. States Constitution
the United
8, 2004)
U.S. 36 (March
(interpreting
v.
Washington,
Crawford
of witnesses
statements
for out-of-court
Clause
the Confrontation
Roberts,
Lawrence
(1980));
U.S. 56
Ohio
and overruling
the Fourteenth
Texas, 123
Ct. 2472 (2003) (interpreting
S.
to liberty
to homosexuals’ rights
with
Amendment
regard
*12
Hardwick,
v.
U.S. 186 (1986)); Ring
v.
478
Bowers
overruling
Amendment
Arizona,
the Sixth
584 (2002)
536 U.S.
(interpreting
court,
alone,
determined
had
where trial
sitting
trial
to jury
right
the
in a death
circumstances
absence of
aggravating
presence
Arizona,
We hold failure of Task Force Drug in this case to advise Brown she had agents Jaye right refuse consent to the violated her and the home, Michael Williams warrantless intrusions into the as against Article of the Arkansas guaranteed by Constitution. We affirm the of all evidence seized this case that suppression flowed from this unconstitutional search. do While we not hold that the Arkansas Constitution of a execution written consent requires form which contains statement that the home dweller has the consent, to refuse this would be the better undoubtedly for law enforcement to follow. practice Affirmed. dissent. C.J., JJ.,
Dickey, Imber, Glaze Justice, 4-3 divided Today, court dissenting. Tom Glaze, issues an that makes a radical in Arkansas opinion change search and seizure law. decision is law clearly contrary prior and the unwarranted and I change totally unnecessary. Initially, out the obvious mistakesthe point four-member has made in its Amendment, refusal to follow the Fourth itas all citizens protects *13 against unlawful searches.
First, the members seem to treat the majority’s so-called “knock and talk” brand as a new used law enforce- procedure by time, ment officers. Such a has been around for a procedure long consent to allows officers to a home dweller’s merely request situation, search his or her In this of the dwelling. officers type have some that an information be illegal activity may occurring home, inside the but the officers do not have sufficient evidence to obtain a search (probable cause) warrant. Our court has an officer’s to long recognized request home, the to search under limited
suspect’s circumstances. SeeArk. Rule Crim. 11.1. P. Rule 11.1 as follows: “An provides officer conduct searches and make may seizures without a search warrant or other color if consent is to the search authority given or seizure.” This court’s Rule 11.1 also makes it commentary clear that an officer consent to doesnot seeking suspects added.) to consent.(Emphasis to advisethem that they may have refuse 11.1, and instead Rule ignores The majority opinion completely the rule. in clear conflict with which is reaches a conclusion cited the King After dissenting opinion here, the majority as (1977), controlling 557 S.W.2d overrule, court than follow it. rather King court opted art. us: whether Ark. Const. the issue now before considered 2, very be the to refuse consent that advice of given requires § be a consensual search enforcement officers before lawby here, no; the the court held to be found voluntary. King, words, this court refuses In other simply says yes. majority follow precedent. fails to even so much as describe Since majority opinion There, was I will. King
the facts or analyze
reasoning King,
theft,
erred in
and he contended the trial court
convicted
evidence secured
warrantless
his motion to
denying
suppress
under the federal
He
the search was unreasonable
search.
asserted
The trial court
and Ark. Const. art.
15.
Fourth Amendment
consent,
to a valid
ruled that the search was conducted pursuant
that a search warrant should have
and rejected King’s argument
Bustamonte,
As in the present King that the consent was because failed to voluntarily given State prove stated nature of the confrontation. The of the coercive King that the voluntariness of consent is a rule question general circumstances, fact to be determined from totality the burden is on the State to consent was prove voluntarily Id. clear given by positive proof.
Here, the trial court was issue to consider is whether key that the officers’ search could have met constitu- correct ruling Brown, muster if had informed M. Michael C. tional only they Jaye that she had the to refuse consent Williams’ co-occupant, before consensual search would be valid under the Arkansas any decision, in the This court decided the issue Constitution. King *14 which reads as follows: if the was further that even argues
Appellant [King] shouldbe to a required prove knowing state voluntarilygiven, waiver and intelligent since Mrs. was not told her Griggs of to right search, However, refuse consent the search was invalid. a consent is not knowing intelligent our Federal required by Bustamonte, Constitution. In Schnecklothv. Court supra, [Supreme] said:
There is a vast difference between those that a rights protect fair criminal trial and the under the rights guaranteed Fourth Amendment. either in the Nothing behind a purpose requiring ‘knowing’ waiver of trial ‘intelligent’ or in the rights, of such a practical application that it requirement suggests ought to be extended to the constitutional guarantee unrea- against sonable searches and seizures.
Rather,
of
to refuse consent
knowledge
right
a factor to
only
be considered in
determining
voluntariness of consent and the
state is not
required
demonstrate such
as a
knowledge
prerequi-
site to
Watson,
a
establishing
consent. United
voluntary
Statesv.
U.S. 411 (1976);
Bustamonte,
so,
and Schnecklothv.
Even
supra.
appellant[King]
sinceeachstate has
urges
power
imposehigher
standardson searchesand seizuresunderits own lawsor constitutionthan
Constitution,
are
by our Federal
required
we should
impose greater
standard than articulatedin Schneckloth.In our view the Schneckloth
standard required
in consenttosearchis
proof
underthe
adequate
terms
of
2, 15,
ourconstitution.Art.
Ark. Const. (1874).
it
Although appears
§
Mrs. Griggs was not verbally informed of her
to refuse
right
consent, she
a consent to
signed
search her
and a waiver of
premises
her
to be free from
unreasonable searches and seizures. She
her,
the consent and
acknowledged
waiver form was read to
she understood and
it.
signed
King, see, As one can this court in readily considered the King whether, under art. question officers must advise home dweller of his or her to refuse consent before the officers can search the legally home. This court person’s answered “no,” awith question and went resounding into considerable detail as to why suspect’s consent is knowledge only refuse to be considered in the voluntariness of a determining factor consent. The decision had been law since and the good King it, overrules majority opinion for the glibly reason that apparently case’s stands in the holding outcome the way majority desires to reach.
477
cases, however, remain consistent with
For
recent
King.
Our
searches,
that,
the issue of consent
this court has noted
on
example,
in manner consistent with federal law.
Arkansas law a
we interpret
cases,
a host of Arkansas
That federal law is followed stating
to search is not
to refuse consent
knowledge
person’s
v.
the voluntariness of consent. See Latta
to prove
requirement
that,
488,
State,
stated
in
Ark.
ment in consensual while that not be analysis analysismay the Fourth Amendment mandates that perfect, Arkansas courts must consider the of the circumstances when officers totality obtain a consent to enter his or her subject’s residence. an officer to Requiring advise the that he or she has a to refuse consent to a search suspect in no assures that future searches way will questions concerning illegal be abated. For our court’s review of whether an officer example, informed the resident that he or she had the to refuse consent will continue to on of the officer or resident. depend credibility threshold Did the remains: officer admoni- question give required resident, and, tion have the to refuse to to the if the (you consent) did, officer does the court then consider all other circum- surrounding stances that bear on the of the search? validity
Also,
that the
has
it is more than
majority
just
passing strange
2,
Ark.
art.
since
decided to construe
Const.
differently,
now
§
is
identical
to the
constitutional
virtually
Arkansas’
provision
2,
Because article
15 is almost identical to
Fourth Amendment.3
§
Amendment,
in the Fourth
our court in
found
past
language
the same Fourth
decisions has
reasonably adopted
justifiably
Amendment
used
the United States
Court
analysis
Supreme
when
search and seizure
the federal
courts
considering
appellate
this
decisions
art.
issues. As
court’s
consequence,
interpreting
15 have become
of that constitutional
SeeNelson
part
provision.
§
v. Timberline
Inc.,
Int’l,
332 Ark.
Finally, especially noteworthy State, 552, There, v. Stout 320 Ark. 898 457 S.W.2d this (1995). 2, the similar of art. 15 and the Fourth emphasized wording § Amendment, that, held in search and seizure specifically conflicts, the court will construe our Constitution in a manner consistent with the Court’s The Supreme interpretation. majority Stout that a case involved motor attempts sidestep by stating vehicle and not residence as in the case now us. before The court fails to cite case law for such an majority any interpretation. short, In the cases cited above in this have construed art. opinion 2, 15 to cover both motor vehicles and homes. §
3 U. S. Const. amend 4 reads as follows: people persons, Unreasonable searches and seizures.The of the be secure in their right papers,
houses,
effects,
seizures,shall
violated,
unreasonable searches and
not be
and no
against
upon probable
supported by
warrants
particularly
issue,
cause,
shall
but
oath or affirmation, and
place
persons
searched,
to be
and the
or
to be seized.
describing
things
Ark.
following:
Const. Art.
15
2, §
provides
State
people
The
persons,
of this
papers
houses,
to be secure in their
and effects
unreasonable
except
searches and seizures shall not be violated; and no warrant shall issue
against
upon probable
supported by
particularly
place
cause,
affirmation,
oath or
to be
describing
person
searched and the
to be seized.
thing
Picado,
the case of
cites
majority opinion
Jegley
600,
for the
that a
(2000),
Ark.
Dickey, Imber,