author: A NNABELLE CLINTON IMBER, Justice. J IM HANNAH, Justice,

text:
    John T. SCOTT v. STATE of Arkansas
    CR 00-1373
    67 S.W.3d 567
    Supreme Court of Arkansas
    Opinion delivered February 28, 2002

      McDaniel & Wells, P.A., by: Bill Stanley, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   A NNABELLE CLINTON IMBER, Justice.

Appellant John T. .Scott was charged with manufacturing a controlled substance (methamphetamine), attempt to manufacture a controlled substance (methamphetamine), and possession of drug paraphernalia with intent to manufacture methamphetamine. Mr. Scott contended below that the search of his home was unlawful and that evidence seized as a result of the search should be suppressed. The trial court denied the motion to suppress, and Mr. Scott entered a conditional plea of guilty to possession of drug paraphernalia with intent to manufacture methamphetamine pursuant to Ark. R. Crim. P. 24.3(b), reserving the right to appeal the trial court’s suppression ruling. Mr. Scott was sentenced to twenty-four months in the Arkansas Department of Correction, followed by five years’ suspended imposition of sentence. He now appeals the trial court’s ruling on his motion to suppress. We affirm.

At the suppression hearing, Deputy Sheriff Robert Rounsavall of the Mississippi County Sheriffs Department testified that he received a tip from an anonymous caller, as well as calls from the Arkansas State Police and the Leachville Police Department, indicating that Mr. Scott was manufacturing methamphetamine in his home. All three calls were received “within a few weeks” of January 12, 2000. Deputy Rounsavall enlisted the assistance of two other law enforcement officers, Investigator Danny Foster and Sergeant Reggie Moore. The officers agreed that they did not have enough information to get a search warrant, but they hoped to get consent to search the Scott residence. As a result, all three officers approached the Scott residence on the afternoon of January 12, 2000. According to the police report, the officers arrived at the home at 2:35 p.m. Deputy Rounsavall indicated this was an approximate time of arrival based on his recollection of looking at his watch as the officers “headed to the residence from Leachville.” Before the officers got out of their truck, they decided that Investigator Foster and Sergeant Moore would go up to the front porch of the house and knock on the door. Meanwhile, Deputy Rounsavall was to go “beside the house and watch the side and the back of the house . . . [for] an officer-safety issue. ...” All three officers were in plain clothes, wearing badges around their necks and carrying handguns.

After the officers knocked, Mr. Scott yelled, “Who is it?” Investigator Foster responded that it was the police, and, a few moments later, Mr. Scott came to the door. Sergeant Moore testified that Mr. Scott opened the door, but there was still a screen door between them and Mr. Scott. According to Mr. Scott, he opened both the wooden door and the screen door. Mr. Scott also testified that, when he opened the door, all three officers were on his front porch, and he put one of his hands on the door facing, causing all three officers to reach for their guns. However, this testimony was disputed by the officers who denied reaching for their guns when Mr. Scott opened the door. Investigator Foster told Mr. Scott they had information that he might be cooking methamphetamine in his residence and asked him if the officers could search the residence. Mr. Scott denied that he was making methamphetamine and gave the officers verbal consent to search his residence and the grounds. The officers did not initially tell Mr. Scott that he had a right to refuse consent or a right to make them get a search warrant. Mr. Scott claims Investigator Foster told him that, if he did not consent to a search they would get a search warrant and confiscate all of his property. All three officers, however, denied making any such statement.

According to Investigator Foster, he went back to the vehicle to get a “Consent to Search” form after obtaining Mr. Scott’s verbal consent; whereas, Sergeant Moore testified that he believed Investigator Foster had the consent form with him when they arrived at the porch. The officers’ testimony was also inconsistent with respect to whether Deputy Rounsavall could hear what was being said on the porch. Nonetheless, all three officers agreed that Investigator Foster had informed Deputy Rounsavall that Mr. Scott had verbally consented to the search before the deputy walked from the driveway to the back of the house where he noticed several tanks with a turquoise-blue color around the fittings. That color, according to Deputy Rounsavall, indicated the tanks were being used for anhydrous ammonia. He then walked back around to the front of the house, where Investigator Foster was reading the written consent form to Mr. Scott. It was at this point that Mr. Scott was advised of his right to refuse consent. Though Mr. Scott testified to initially telling the officers he did not want to sign the form, the officers maintained that Mr. Scott never denied consent. In fact, he signed the written consent form at 2:50 p.m., whereupon Deputy Rounsavall advised him that he was under arrest and read him the standard Miranda warnings. Mr. Scott then told the officers they could find the methamphetamine lab in the attic, purportedly because he did not want them to tear up his house.

Based upon the evidence introduced at the suppression hearing and arguments of counsel, the trial court denied the motion to suppress. In its order, the court made the following findings:

1. That officers proceeded to the home of the defendant based upon an anonymous tip and such information did not result in the officers having a reasonable suspicion or probable cause that the defendant was involved in criminal activity.
2. That the officers in acting upon the tip had a consensual contact with the defendant and the Court hereby finds that the initial encounter occurred when the officers knocked on the defendant’s door and the defendant promptly responded; the Court further finds that the officers did not engage in conduct that was threatening or that in any manner reflected a showing of force. That the officers’ contact with the defendant was of a consensual nature and such contact did not constitute a seizure so as to implicate the Fourth Amendment.
3. That the State has met its burden of proof in establishing by clear and positive evidence that the defendant consented to search of his premises.

In reviewing a ruling denying a defendant’s motion to suppress, we make an independent determination, based on the totality of the circumstances, and view the evidence in the light most favorable to the State. Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). We reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. Id. We defer to the trial court in assessing the credibility of witnesses. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001).

Mr. Scott’s first contention on appeal is that the officers had no reasonable suspicion to contact him and that the initial contact constituted an illegal seizure in violation of his rights under the Fourth Amendment to the United States Constitution, thereby negating the subsequent consent and search as “fruits of the poisonous tree.” Fie claims that, once he answered the door, he did not feel free to terminate his encounter with the police. The State argues that Mr. Scott’s encounter with the police was voluntary, pointing out that Mr. Scott verbally consented to the search and signed a consent-to-search form. The State contends that a “knock and talk” procedure is not a seizure under the Fourth Amendment, and, therefore, a reasonable suspicion is not required.

A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. Ark. R. Crim. P. 2.2(a) (2001). The officer may request the person to respond to questions or to comply with any other reasonable request. Id. In making such a request, no officer shall indicate that a person is legally obligated to furnish information or cooperate if no legal obligation exists. Ark. R. Crim. P. 2.2(b) (2001). Compliance with such requests shall not be regarded as involuntary or coerced solely on the ground that such a request was made by a law enforcement officer. Id.

This court has interpreted Rule 2.2 to provide that an officer may approach a citizen much in the same way a citizen may approach another citizen and request aid or information. State v. McFadden, 321 Ark. 16, 938 S.W.2d 797 (1997); Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990). Not all personal intercourse between policemen and citizens involves “seizures” of persons under the Fourth Amendment. Id. A “seizure” of a person occurs when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. See Terry v. Ohio, 392 U.S. 1 (1967).

Police-citizen encounters have been classified into three categories. State v. McFadden, 327 Ark. 16, 938 S.W.2d 797.

The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the fourth amendment. The second police encounter is when the officer may justifiably restrain an individual for a short period of time if they have an “articulable suspicion” that the person has committed or is about to commit a crime. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause.

Id. at 21, 938 S.W.2d at 799. (Citations omitted.) Ride 2.2(a) provides the authority for a police officer to act in the first category of nonseizure encounters. Id. A balancing test must be used in these situations:

the approach of a citizen pursuant to a policeman’s investigative law enforcement function must be reasonable under the existent circumstances and requires a weighing of the government’s interest for the intrusion against the individual’s right to privacy and personal freedom. To be considered are the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter.

Id. (citing Baxter v. State, 274 Ark. 539, 626 S.W.2d 935, cert. denied, 457 U.S. 1118 (1982)). Our case law has consistently held that Rule 2.2 authorizes an officer to request information or cooperation from citizens where the approach of the citizen does not rise to the level of being a seizure and where the information or cooperation sought is in aid of an investigation or the prevention of crime. Id.

In Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000), this court said that entry onto private property by police can be justified by the legitimate police objective of determining if anyone is present to interview as part of an investigation of drug-related activity. There, two officers approached a home and knocked on its front door several times. Id. After receiving no answer, the officers followed a little path leading around the house to the back door where they knocked again. Id. We held that the police acted reasonably, even in going to the rear of the home, where they entered the property for a legitimate police objective and did not exceed the scope of their purpose for going to the residence. Id. In Burdyshaw v. State, 69 Ark. App. 243, 10 S.W.3d 918 (2000), the Arkansas Court of Appeals recently concluded that the police do not need reasonable suspicion to approach a residence and request consent to search. In that case, police drove up a long and narrow driveway, past “no trespassing” signs, and onto the appellant’s property at 7:45 p.m. to request a consent to search the property based on an anonymous tip that the appellant was operating a methamphetamine lab at his residence. Id. The appellate court held that entry onto the property was not a violation of the Fourth Amendment and the consent was not a fruit of the poisonous tree. Id.

It is clear to this court that the officers in the instant case were justified in approaching Mr. Scott’s residence to question him about potential criminal activity, even without reasonable suspicion or probable cause. In fact, appellant’s counsel conceded as much to this court at oral argument.

The next inquiry must be whether the initial encounter between the officers and Mr. Scott rises to the level of a Fourth Amendment seizure. The United States Supreme Court, in Florida v. Bostick, 501 U.S. 429 (1991), held that it was not per se unconstitutional for police to board a bus and ask at random, without articulable suspicion, for consent to search a passenger’s luggage. A seizure does not occur simply because a police officer approaches an individual and asks a few questions. Id. A seizure occurs when a reasonable person would not feel “free to leave.” Michigan v. Chesternut, 486 U.S. 567 (1988). The “free to leave” analysis, however, is not an accurate measure of the coercive effect of an encounter in situations where a person would have no desire to leave, such as where the person is seated on a bus. Florida v. Bostick, 501 U.S. 429. “In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Id. at 436. The crucial test is whether, taking into account all circumstances, the police conduct would have communicated to a reasonable person “that he was not at liberty to ignore the police presence and go about his business.” Id. at 437 (citing Michigan v. Chesternut, 486 U.S. at 569). It is important to note that the “reasonable person” test presupposes an innocent person. Id. at 438.

As with a passenger on a bus, a person approached by police officers at his home would have no desire to leave. Thus, the appropriate inquiry is whether a reasonable person, in the same circumstances, would have felt free to decline the officers’ request to search. In this case, the officers approached Mr. Scott’s residence and attempted to gain consent to search by utilizing a procedure known as a “knock and talk.” Our court of appeals has quoted the North Carolina Supreme Court’s description of the procedure:

The “knock and talk” procedure is a tactic used by law enforcement in Winston-Salem when they get information that a certain person has drugs in a residence but the officers don’t have probable cause for a search warrant. The officers then proceed to the residence, knock on the door, and ask to be admitted inside. Thereafter gaining entry, the officers inform the person that they’re investigating information that drugs are in the house. The officers then ask for permission to search and apparendy are successful in many cases in getting the occupant’s “apparent consent.”

Hadl v. State, 74 Ark. App. 113, 116, 47 S.W.3d 897, 899-900 (2001) (quoting State v. Smith, 346 N.C. 794, 796, 488 S.E.2d 210, 212 (1997)). The question of whether the “knock and talk” procedure automatically violates the Fourth Amendment is an issue of first impression in this State. We thus look to other jurisdictions for guidance.

Every federal appellate court which has considered the question, including the Eighth Circuit United States Court of Appeals, has concluded that the “knock and talk” procedure is not per se violative of the Fourth Amendment. For example, in Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001), the Fourth Circuit Court of Appeals suggested that police may approach the door of a residence to “knock and talk,” seeking to speak to the inhabitants, without probable cause, a warrant, or exigency. Likewise, the Fifth Circuit Court of Appeals, in United States v. Jones, 239 F.3d 716 (5th Cir. 2001), concluded that the “knock and talk” investigative tactic is not inherently unreasonable. In United States v. Johnson, 170 F.3d 708 (7th Cir. 1999), the Seventh Circuit Court of Appeals held that a “knock and talk” is not automatically unconstitutional but warned that police must realize the inherent limitations in the more informal way of proceeding. The Seventh Circuit did find a “knock and talk” to be in violation of the Fourth Amendment under a specific set of extreme circumstances in United States v. Jerez, 108 F.3d 684 (7th Cir. 1997). The Jerez court held that a “knock and talk” investigation became a seizure when the officers’ persistence prevented the appellants from ignoring the police and maintaining their privacy and solitude. In that case, two officers approached the appellants’ motel room at 11:00 p.m., took turns knocking loudly on the hotel room door for about three minutes, proceeded outside to knock on the room’s exterior window for one to two minutes, and directed light from a flashlight into the room. Id.

The United States Court of Appeals for the Eighth Circuit has upheld a district court’s determination that a defendant voluntarily consented to a search of his hotel room after officers knocked on the door of his motel room, identified themselves as law enforcement officials, were invited into the room, and obtained consent to search without the use of force. United States v. Severe, 29 F.3d 444 (8th Cir. 1994). Likewise, the Ninth Circuit Court of Appeals has recognized “knock and talk” as a valid procedure for nearly forty years:

Absent express orders from the person in possession against any possible trespass, there is no rule of private or pubhc conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof whether the questioner be a pollster, a salesman, or an officer of the law.

United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000) (quoting Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964)). In Cormier, the Ninth Circuit held that use of the “knock and talk” procedure to gain access to a motel room was permissible, in the absence of reasonable suspicion, and did not result in a seizure of the defendant or vitiate his consent to search. Id.

Similarly, other state courts have come to the same conclusion. These states include: Iowa in State v. Reinier, 628 N.W.2d 460 (Iowa 2001); Maryland in Scott v. State, 366 Md. 121, 782 A.2d 862 (2001); and North Carolina in State v. Smith, 346 N.C. 794, 488 S.E.2d 210 (1997).

In the instant case, we hold that the police did not need a reasonable suspicion in order to approach Mr. Scott’s residence and request his assistance in a criminal investigation. As previously stated, we make an independent determination based on the totality of the circumstances, viewing the evidence in the light most favorable to the State. Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). While two officers went to the front porch, knocked on the front door, and identified themselves as police officers, another officer remained to the side of the house. After Mr. Scott responded and opened the door, one officer told him they had information that he was making methamphetamine and asked for consent to search his home. The officers did not indicate to Mr. Scott that he was legally obligated to cooperate. Taking into account all of the circumstances of the encounter and viewing the evidence in the light most favorable to the State, we cannot say that the officers’ conduct here would have communicated to a reasonable person that he was not free to “ignore the police presence and go about his business.” Florida v. Bostick, 501 U.S. at 436. Thus, we conclude that the “knock and talk” investigation in this case did not amount to a “seizure” in violation of the Fourth Amendment. Accordingly, Mr. Scott’s consent to search is not a fruit of the poisonous tree of an illegal seizure under Wong Sun v. United States, 371 U.S. 471 (1963). We affirm the trial court on this point.

Mr. Scott’s second contention on appeal is that the State failed to demonstrate by clear and positive evidence that his consent to search the premises was voluntary. A warrantless entry into a private home is presumptively unreasonable. Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). The burden is on the State to prove the warrantless activity was reasonable. Id. As a general matter, a warrandess entry made with consent does not violate the Fourth Amendment. Id. Under Ark. R. Crim. P. 11.1, an officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search or seizure. Ark. R. Crim. P. 11.1 (2001). The Fourth and Fourteenth Amendments require that consent not be coerced, by explicit or implicit means, by implied threat or covert force. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The voluntariness of consent must be judged in fight of the totality of the circumstances. Id. It is the State’s burden to prove by clear and positive evidence that consent was given freely and voluntarily. Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978). This burden cannot be discharged by showing no more than mere acquiescence to a claim of lawful authority; it must be shown that there was no duress or coercion, actual or implied. Id. See also Bumper v. North Carolina, 391 U.S. 543 (1968).

Mr. Scott contends that the case of Smith v. State, 265 Ark. 104, 576 S.W.2d 957 (1979), wherein a search and seizure was found to violate the Fourth Amendment, has “strikingly similar facts to the present matter.” Contrary to Mr. Scott’s argument, that case is easily distinguishable from the situation now before this court. In Smith, the appellant was arrested at his home on hot check charges. Id. While he was dressing, officers asked for consent to search his home. Id. There was no doubt that the officers went to the home to search for a stolen TV and used the hot check warrant to effectuate that purpose. Id. During the search, they confirmed that the serial number on a TV in the home matched the one they were searching for. Id. Later, at the police station, Smith was asked to sign a written consent to search form. Id. We held that the State has a particularly heavy burden to prove that a warrantless search is voluntary where the defendant is already under arrest and in the custody of the officers at the time it was alleged that consent was given. Id. (Emphasis added.) Clearly, the “particularly heavy burden” analysis does not apply to the present case. Mr. Scott was not under arrest at the time he gave verbal consent to search his residence.

Next, Mr. Scott urges us to apply the case of Evans v. State, 33 Ark. App. 184, 804 S.W.2d 730 (1991), in which the court of appeals reversed the trial court’s denial of a motion to suppress. In that case, a North Little Rock police officer responding to a telephone call from a woman indicating that her daughter was being held at gunpoint at 1600 North Main, approached a home at 1516 North Main. After knocking and receiving no response, the officer entered the home and found several marijuana plants. Id. As the officer stood behind the house, the appellant arrived. In response to the officer’s inquiry, he admitted that he was the owner of the home. Id. After an officer showed him the marijuana plants and advised him that he could either consent to a search or the officers could go get a search warrant, he admitted the plants were his. Id.

The court of appeals held that the initial entry into the appellant’s residence, in the absence of probable cause, was in violation of the constitutional guarantees against unreasonable search and seizure. Id. Thus, the court held- that the appellant’s consent to search and the items found as a result of the search were fruits of the prior illegal search. The court also concluded that the appellant’s consent was not freely and voluntarily given in light of the fact that he was confronted with the incriminating evidence and told that if he did not consent they could go get a search warrant. The court equated the situation to that in Bumper v. North Carolina, supra, wherein the Supreme Court found coercion where officers falsely claimed to have a search warrant. The situation before us is distinguishable. Here, the officers admittedly had no probable cause, but they began to search only after approaching Mr. Scott and receiving his consent. Moreover, they did not confront him with items found during an illegal search and then attempt to secure his consent.

In Holmes v. State, 347 Ark. 530, 65 S.W.3d 860 (2002), this court recently held that consent to the entry of a home was not proven by clear and positive testimony where the evidence showed that the inhabitant of the house, who “appeared to be under the influence,” never gave verbal consent but merely opened the door, stepped back, and may have nodded. In that case, we noted that it was not clear whether the inhabitant was inviting the officer in or merely “reacting to the command of a law enforcement officer who . . . was accompanied by at least two other officers who had already taken away the person who resided in the house.” Id. at 540, 65 S.W.3d at 866. Here, however, there is clear and positive testimony that Mr. Scott verbally consented to the search and then signed a “consent-to-search” form. Furthermore, while the evidence indicates that Mr. Scott was aware of the presence of three officers, two on his porch and one standing to the side of his house in the driveway, we cannot say that the officers had asserted their authority in such a way as to taint Mr. Scott’s verbal and written consent to search his residence.

Finally, Mr. Scott claims that it is clear his consent was not voluntarily given based on the following circumstances: (1) Mr. Scott asserts that all three officers put their hands on their guns when he answered the door; (2) the officers told him they had information from someone else that he was making methamphetamine; (3) the officers did not inform him of his right to refuse consent at the time he gave verbal consent; (4) the officers were inconsistent in their testimony as to whether Officer Rounsavall heard or was told of Mr. Scott’s verbal consent before leaving to search the back of the home; (5) there was an unexplainable fifteen-minute delay between the arrival of the officers and Mr. Scott’s signing of the consent form, as well as inconsistent testimony as to whether the officers had to go to their vehicle to look for a consent form; (6) Mr. Scott insists that he initially declined to sign the consent form; and (7) Mr. Scott asserts that the officers told him they would get a search warrant and confiscate his property if he did not consent.

Once again, in making an independent determination based on the totality of the circumstances, we must view the evidence in the light most favorable to the State and defer to the trial court’s assessment of the credibility of witnesses. Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998); Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). In this case, the only evidence of potentially coercive conduct by the officers, i.e., putting their hands on their guns and threatening to take his property, came from Mr. Scott himself, which testimony the trial court was not required to believe. Dansby v. State, 338 Ark. 697, 1 S.W.3d 403 (1999). We cannot say that the encounter in question was the result of coercive contact by the police because the police arrived in the middle of the afternoon and knocked on Mr. Scott’s door only long enough to wake him from a nap. Also, Mr. Scott was notified that policemen were knocking before he opened the door. The officers informed Mr. Scott about the information they had received and that they were seeking aid in a criminal investigation. As for Mr. Scott’s knowledge of his right to refuse consent, this court has stated in Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993), that knowledge of the right to refuse consent to search is not a requirement to prove the voluntariness of consent. A finding of voluntariness will be affirmed unless that finding is clearly against the preponderance of the evidence. Id.

It is well settled that any inconsistencies in testimony are for the trier of fact to resolve. Dansby v. State, supra. In this case, any inconsistency in the officers’ testimony was credibly resolved by the State’s witnesses. As to Deputy Rounsavall’s knowledge of Mr. Scott’s consent, Investigator Foster eventually testified that he thought Deputy Rounsavall was close enough to hear the verbal consent but stated that he also informed Deputy Rounsavall of the consent. As for the fifteen-minute delay, the officers’ time of arrival was merely an approximation based upon one officer’s glance at his watch as they drove to the residence. Furthermore, Sergeant Moore testified that he did not think the officers were present for fifteen minutes before the consent-to-search form was signed. As we must view the evidence before us in the light most favorable to the State, we also acknowledge that, according to the officers, Mr. Scott never refused consent or declined to sign the written consent form. We, therefore, hold that the State demonstrated by clear and positive evidence that Mr. Scott voluntarily consented to a search of his home.

In conclusion, police officers do not need reasonable suspicion to approach a citizen in order to ask questions relating to the investigation of a crime. The facts surrounding the “knock and talk” investigation in this case did not amount to a “seizure” in violation of the Fourth Amendment. Accordingly, Mr. Scott’s consent to search was not a fruit of the poisonous tree. Additionally, there was clear and positive evidence that Mr. Scott voluntarily consented to a search of his home. Viewing the totality of the evidence in the light most favorable to the State, the trial court’s denial of Mr. Scott’s motion to suppress was not clearly against the preponderance of the evidence.

Affirmed.

Thornton and Hannah, JJ., concur.

J IM HANNAH, Justice,

concurring. I agree with the result in this case but write to highlight my concerns about the factual underpinnings of the decision and to note that had this case been decided under our state constitution, I would have reached a different result.

We have recognized that the Fourth Amendment is not implicated when police approach the common entryways of residences, including the rear of a home, for legitimate purposes, including questioning a suspect. See Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000) (citing United States v. Anderson, 552 F.2d 1296 (8th Cir. 1977)). Once there, however, the Supreme Court applies the second of two tests to determine whether a person has been “seized” within the meaning of the Fourth Amendment. This second approach applies when the police approach an individual in a confined space such as a bus, a motel room, or a home. In such a situation, it no longer “makes sense to inquire whether a reasonable person would feel free to continue walking” as is the concern under the first approach to this question. Florida v. Bostick, 501 U.S. 429, 435 (1991). Because a person on a bus or in an otherwise confining space “has no desire to leave” and would wish to remain even if police were not present, “the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.” Id. at 435-36. When a person’s “freedom of movement [is] restricted by a factor independent of police conduct — i.e., by his being a passenger on a bus . . ., the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ request or otherwise terminate the encounter.” Id. at 436; Michigan v. Chesternut, 486 U.S. 567, 576 (1988) (seizure occurred if “respondent could reasonably have believed that he was not free to disregard the police presence and go about his business”). Like the person seated on the bus in Bostick, a person staying in a motel room or at home has no desire to leave and would remain whether police were present. A person, therefore, is “seized” within the meaning of the Fourth Amendment if a reasonable person would not have felt free to decline. The test, as with the “free to leave” formulation, is an objective one and requires a contextual approach. United States v. Rodriguez, 69 F.3d 136, 141 (7th Cir.1995); United States v. Notorianni, 729 F.2d 520, 522 (7th Cir. 1984). The determination of whether an encounter is a seizure is made on the basis of the “totality of the circumstances” surrounding the encounter. Bostick, 501 U.S. at 437; Chesternut, 486 U.S. at 572-73. In making the assessment as to whether a seizure occurred, the circumstances must, of course, be assessed in terms of the values protected by the Fourth Amendment.

It is under these parameters that the facts of this case must be reviewed. Here, Mr. Scott was clearly at his home at the time of the “knock and talk” conducted by the police. Therefore, this court’s analysis must focus on whether a reasonable person in Scott’s position “would feel free to decline the officers’ request or otherwise terminate the encounter.” Bostick, 501 U.S. at 436. This inquiry, then, is conducted within the confines of the facts of the case, and those facts generally depend on a judgment of the credibility of the witnesses. While we defer to the trial court on such credibility decisions, see Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001), I take this opportunity to highlight facts that cause me great concern here. First, according to the police officers’s testimony and the police report, the officers arrived at Mr. Scott’s home at 2:35 p.m., and two officers approached the front door while the third stood to the side of the house in view of the front door. Immediately upon engaging Mr. Scott in conversation, the police indicated that they had information that he was making methamphetamine at his house, and they wanted his consent to search. With the officers’s beginning their questioning with such an accusation, would a reasonable person believe that he was free to disregard the police presence and go about his business? I suspect not.

After this, the police officers’s facts become sketchy at best. One officer testified that Mr. Scott agreed to sign a consent form, and the pair of officers stepped inside the house and presented the consent form that they had with them. The second officer at the door testified that they did not have a consent form available, so he had to return to the car and find one. Regardless, the facts indicate that fifteen minutes passed between the initial encounter and Mr. Scott’s signing the consent form. So what happened during those fifteen minutes? Because the officers’s stories are contradictory, this places the entire fifteen minutes into question, and tends to question whether verbal consent was immediately given. Certainly, Mr. Scott testified that he originally denied the officers’s requests for consent to search, but that after they spoke with him for several minutes telling him that they would not confiscate all of his property if he signed the consent form, Mr. Scott signed the form for fear that they would take all of his belongings. This, of course, would explain the passage of a quarter of an hour before written consent was provided for the search. Furthermore, with such a passage of time, the inquiry regarding whether Mr. Scott, again, felt free to disregard the police presence and go about his business is countered with the fact that he felt compelled to stand at his front door for a quarter of an hour discussing the situation with the police before granting written consent to search. As noted, however, the trial court chose to believe the officers here, and we defer to that credibility determination, despite the fact that these officers admittedly went to Mr. Scott’s home without any evidence that would constitute even reasonable suspicion to get a search warrant, and admittedly doing so “in hopes of getting a consent to search.”

I submit, however, that had this search and seizure been challenged under Article 2, section 15, of the Arkansas Constitution, the outcome may have been different. Here, the court decided this case according to the Fourth Amendment of the United States Constitution, and is bound by federal decisions regarding the search. However, we may interpret our constitution obviously without restrictions from other jurisdictions. And, pursuant to our constitution, I would be inclined in this case to find that the police officers here had no business spending fifteen minutes attempting to gain consent to search. Rather, while Arkansas Rule of Criminal Procedure 2.2 would allow the initial approach by the officers under the facts here, once the defendant denies any involvement in the alleged crime for which the police have no evidence even to support a reasonable suspicion, contact should cease. The very presence of armed police officers on one’s doorstep and at the side of the house, coupled with the bald accusation of drug manufacturing, would cause a reasonable person to feel compelled to continue speaking with those officers rather than feel free to disregard the police presence and close the door. As such, the initial encounter, prior to any signed consent to search, is questionable in this case.

Furthermore, that we perhaps would offer more protection to a defendant in this type of situation under our constitution is evidenced in part by Arkansas Rules of Criminal Procedure 2.2 and 2.3 requiring at least that police officers may not assert that compliance with their requests is required, and at the greatest that they must advise a defendant of his right to refuse compliance with the request for information. Certainly, under Rule 2.3 “Warning to persons asked to appear at a police station,” a law enforcement officer must “take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.” Rule 2.2 “Authority to request cooperation,” also requires that “no law enforcement officer shall indicate that a person is legally obligated to furnish information or to otherwise cooperate if no such legal obligation exists.” The commentary to these rules indicates that some notice that compliance is not required should be given to the person being questioned. This is particularly important under Rule 2.2 where multiple officers, armed with weapons, spouting accusatory questions, and circling the house, may approach a person’s home to assert allegations for which they have no actual proof.

At least two other states have interpreted their state constitutions to require police officers conducting a “knock and talk” to inform a person that he may refuse consent, revoke consent, or limit the scope of consent, see State v. Ferrier, 960 P.2d 927 (Wash. 1998), or to at least get a “knowledgeable waiver” from the person indicating that he was informed that he has a right to refuse to give consent, and must be cognizant of his rights in the premises, see Graves v. State, 708 So.2d 858 (Miss. 1997). These decisions were based on the search and seizure provisions in Washington’s and Mississippi’s constitutions. These provision are substantially similar to both the Fourth Amendment and to Article 2, section 15, of the Arkansas Constitution, and contain no specific directive requiring officers to inform defendants of the right to refuse consent. While I am cognizant of the fact that we have stated that we interpret Article 2, section 15, as the Supreme Court interprets the Fourth Amendment, see Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999), this new breed of search and seizure law, the “knock and talk,” warrants our departure from federal examples where the citizens of Arkansas face yet another attack limiting the protection of their homes against unlawful intrusion.

THORNTON, J., joins in this concurrence.

       Appellant’s brief asserts that the officers told Mr. Scott they had information from a “confidential informant.” The brief also asserts that both Investigator Foster and Sergeant Moore were led to believe that a confidential informant existed such that a search warrant would be easily ascertainable. The record, however, does not support these assertions. Investigator Foster clearly testified as to his knowledge: “Sergeant Rounsavall received an anonymous call or some kind of call in reference to Mr. Scott manufacturing methamphetamine.” He also acknowledged that the officers were going to the Scott residence “in hopes of getting a consent to search.” Sergeant Moore testified that he knew they were going to perform a “knock and talk” at Mr. Scott’s residence. He also stated that Investigator Foster told Mr. Scott “the information they had received,” but he could not say “exactly where [Investigator Foster] said he got it from.” Deputy Rounsavall acknowledged that the reference in his report to a “confidential informant” was a “typo mistake.”

         Mr. Scott makes no argument under Article 2, Section 15, of the Arkansas Constitution.

       The inquiry does not focus on what motivates the officers’ conduct; rather, the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ request to search. Florida v. Bostick, 501 U.S. 429 (1991).

       Likewise, the Supreme Court has said that whether a person is considered to have given voluntary consent is not contingent upon the person’s being informed in advance of his right to refuse to give consent. United States v. Mendenhall, 446 U.S. 544 (1980). Whether a person had knowledge of the right to refuse consent is recognized as a factor to take into account when determining from the totality of the circumstances whether the person voluntarily consented to the search. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).


source: Caselaw Access Project

author: R AY THORNTON, Justice. D IONALD L. CORBIN, Justice, R OBERT L. BROWN, Justice, J IM HANNAH, Justice,

license: Public Domain

text:
    David GRIFFIN v. STATE of Arkansas
    CR 00-1475
    67 S.W.3d 582
    Supreme Court of Arkansas
    Opinion delivered February 28, 2002
    [Petition for rehearing denied April 11, 2002.]

      Miler Law Firm, by: Leslie Borgognoni and Randel Miller, for appellant.

      Mark Pryor, Att’y Gen., by: Katherine Adams, Ass’t Att’y Gen., for appellee.
   R AY THORNTON, Justice.

Appellant, David Griffin, entered .a conditional plea upon which he was convicted of drug-related offenses following the trial court’s denial of his motion to suppress evidence obtained during a warrantless late-night search of his residence near Jonesboro. Griffin argues three points for reversal. We agree with his first argument that the covert nighttime intrusion upon his property by four police officers violated the provisions of Article 2, Section 15, of the Arkansas Constitution, and we reverse and remand with instructions to suppress the evidence obtained as a result of the unlawful intrusion upon his property.

I. Principles of law

We note that the provisions of Article 2, Section 15, of the Arkansas Constitution are similar to those contained in the Fourth Amendment to the United States Constitution, and it may be that the late-night intrusion upon appellant’s property may have also violated the provisions of federal constitutional law. We have in many cases harmonized the protections afforded by Article 2, Section 15, of our state constitution with those provided by the Fourth Amendment to the United States Constitution. See Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997); Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). However, we base our analysis of this case upon our own state law as expressed by our state constitution, statutes, and cases, recognizing that while we lack authority to extend the protections of the Fourth Amendment beyond the holdings of the United States Supreme Court, we do have the authority to impose greater restrictions on police activities in our state based upon our own state law than those the Supreme Court holds to be necessary based upon federal constitutional standards. See Arkansas v. Sullivan, 532 U.S. 769 (2001).

In many states, the principle that a person should be protected against unreasonable searches and seizures of their persons, houses, papers, and effects was well-established before the 1786 Constitutional Convention adopted a similar restriction, the Fourth Amendment, forbidding the central government from issuing warrants without probable cause. Elisa Masterson White, Criminal Procedure — Good Faith, Big Brother, and You: The United States Supreme Court’s Latest Good Faith Exception to the Fourth Amendment Exclusionary Rule. Arizona v. Evans, 115 S. Ct. 1185 (1995), 18 UALR L.J. 533 (1996) (citing Jacob W Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretaion 30-48 (1966)). The 1780 Massachusetts Declaration of Rights was the first to use the phrase “unreasonable searches and seizures.” Id. (citing Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 13 (1937)). The public furor over the issuance by the King of writs of assistance granting customs officials unlimited power of search and seizure had fueled the spirit of independence of the colonies. Id. (citing Lasson, supra).

The principle that a man’s home is his castle, and that even the King is prohibited from unreasonably intruding upon that home, was particularly well-developed in the rough-and-ready culture of the frontier, and no less pronounced in the Arkansas Territory. In our 1836 Constitution, the people of our newly admitted state expressed this principle succinctly in the following language:

§ 9. That the people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and that general warrants, whereby any officer may be commanded to search suspected places without evidence of the fact committed, or to seize any person or persons not named whose offenses are not particularly described and supported by evidence, are dangerous to liberty, and shall not be granted.

Id. (emphasis added).

This principle is now articulated in Article 2, Section 15, of the present Arkansas Constitution, which provides that “the right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated.” Id.

With reference to the protections contained in Arkansas’s own state laws against unreasonable searches and seizures, the Supreme Court recently noted in Arkansas v. Sullivan, supra:

We reiterated in Hass [Oregon v. Hass, 420 U.S. 714 (1975)] that while “a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards,” it “may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.”

Arkansas v. Sullivan, supra (citation omitted). In State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526 (2000), we erred because we based our decision Hmiting police officers’ discretion to intrude on individual liberty and privacy upon principles of federal constitutional law. Arkansas v. Sullivan, supra.

In the case sub judice, we apply Arkansas law, while observing that our decision does not impose lesser restrictions upon police activity than those guaranteed by the Fourth Amendment to the U.S. Constitution. It is also a principle of law in our state that the exclusionary rule commands that where evidence has been obtained in violation of search and seizure protections, the illegally obtained evidence cannot be used at the trial of the defendant. See Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001).

In Arkansas, there are rigorous standards to be followed in obtaining a search warrant, especially for a nighttime search. We note that nighttime searches with a warrant must be based upon exigent circumstances. Arkansas law allows for search warrants to be executed at night in three circumstances: (1) the place to be searched is difficult of speedy access; (2) the objects to be seized are in danger of imminent removal; or (3) the warrant can only be safely or successfully executed at night or under circumstances the occurrence of which is difficult to predict with accuracy. Ark. R. Crim. P. 13.2(c).

In Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992), we cited with approval the following:

We find the United States Supreme Court case of Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed.2d 732 (1984), to be instructive. In that case, the Supreme Court held that a warrantless, nighttime entry into a home to arrest an individual for driving while under the influence of an intoxicant was prohibited by the Fourth Amendment. The Court stated:

It is axiomatic that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. It is not surprising, therefore, that the Court has recognized, as “a basic principle of Fourth Amendment law,” that searches and seizures inside a home without a warrant are presumptively unreasonable.
Consistently with these long-recognized principles, the Court decided in Payton v. New York, 445 U.S. 573 [100 S. Ct. 1371, 63 L. Ed.2d 639 (1980)] (1980), that warrantless felony arrests in the home are prohibited by the Fourth Amendment, absent probable cause and exigent circumstances. . . . Prior decisions of this Court, however, have emphasized that exceptions to the warrant requirement are “few in number and carefully delineated,” when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.

Butler, supra. We have also held that, in order to enter a residence or private dwelling without violation of prohibitions against unreasonable searches, both probable cause and exigent circumstances must be present. Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988).

Under Ark. R. Crim. P. 11.1, an officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search and seizure. Id. The consent for a warrandess search of an individual’s home must be given freely and voluntarily, and the burden rests upon the State to prove such consent by clear and positive evidence, and this burden is not met by showing only acquiescence to a claim of lawful authority. Holmes v. State, 347 Ark. 530, 65 S.W.3d 860 (2002).

As a general rule, where consent is freely and voluntarily given, the “knock and talk” procedure has been upheld as a consensual encounter and a valid means to request consent to search a house. See United States v. Cormier, 220 F.3d 1103, 1110-09 (9th Cir.2000); United States v. Taylor, 90 F.3d 903, 909 (4th Cir.1996); United States v. Kim, 27 F.3d 947, 951 (3d Cir.1994); United States v. Tobin, 923 F.2d 1506, 1511-12 (11th Cir.1991); Cruz, 838 F. Supp. at 543; State v. Green, 598 So. 2d 624, 626 (La. Ct. App.1992); State v. Land, 106 Or. App. 131, 806 P.2d 1156, 1157-59 (1991).

We believe that this “knock and talk” procedure has been well-defined in Davis v. United States, 327 F. 2d 301, 303 (9th Cir. 1964), where the Ninth Circuit Court of Appeals stated:

Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof whether the questioner be a pollster, a salesman, or an officer of the law.

Id.

In some other jurisdictions, a police officer conducting a “knock and talk” must inform a person that he may refuse consent, revoke consent, or limit the scope of consent. See State v. Ferrier, 960 P.2d 927 (Wash. 1998). Other jurisdictions require a knowledgeable waiver. See Graves v. State, 708 So. 2d 858 (Miss. 1997).

II. Facts

Informed by these principles of law, we consider the following factual circumstances. Griffin was an optician with his office on Flighway 49 near Jonesboro. The offices are near the highway, and a two-story residence belonging to Griffin’s parents is located a couple of hundred yards behind the office, accessible by a private drive. Griffin’s parents own the house and occupy the main part of the house. Their residence is accessible through a front door. Griffin’s residence is in the basement or lower floor, accessible by a sliding glass door. This apartment residence has a sitting room into which the sliding glass door opens, and two small bedrooms are adjacent to the sitting room. Separate from the residence and the office are a shed and several other out buildings, which are some distance from the house and the office. Some two weeks before August 25, 1999, Griffin encountered Officer Bobbie Johnson walking across the property from the back fence toward the road during daylight hours. There is no indication that Griffin gave consent to this intrusion upon his property.

Officer Johnson testified that during daylight hours on August 25, 1999, he received an anonymous tip through another officer that Griffin was selling drugs from his office or home, and Johnson testified that the circumstances of the tip did not constitute probable cause upon which a search warrant could be issued.

Notwithstanding the lack of probable cause, Officer Johnson recruited Deputy Wes Baxter and auxiliary deputies Bobby Phillips and Rod Abernathy, and the four officers went to the premises at about 10:10 p.m. that night. According to their testimony, it was pitch black, and they parked their vehicles fifteen to twenty yards from the house where they could not be seen from the sliding glass door that opened into Griffin’s basement apartment. They made an inspection of one of the parked vehicles between the police cars and the house when they discovered the doors of the vehicle were open. No contraband was discovered in the vehicle. All four of the officers were carrying flashlights.

One of Griffin’s guests, Karen Horton, testified that she was in the living room of Griffin’s basement residence when she saw a bunch of flashlights out in the vicinity of the shed coming through the woods. She advised Griffin, who was in a back room on the telephone with his daughter, that four or five men were approaching the house. Horton testified that the officers told her not to move, and then ordered her to open the door. As she moved forward to open the door, Griffin emerged from the back room where he had been on the telephone with his daughter, and he stepped to the door to meet the officers.

Officer Johnson testified that the patrol cars were not visible from the house, that the officers looked in the parked car because it had an open door, and confirmed that the officers had walked around the premises before talking with Griffin. Johnson then stated he believed they first knocked, then walked around because nobody came to the door, and then returned to knock again, at which time Griffin answered the door. He then asserts, contrary to his earlier testimony, that the search did not begin until consent was given.

It is undisputed that no consent to search was signed, no advice was given that Griffin could re&se to consent to search, and no Miranda rights were read before the search began. It is disputed whether Griffin imposed limitations upon his consent to a search, or whether he later revoked his consent and demanded that the officers obtain a search warrant. The officers found a sealed container containing methamphetamine in a locked cabinet in Griffin’s bedroom. They also discovered drug paraphernalia and a firearm.

III. Standard of review

In reviewing a ruling denying a defendant’s motion to suppress, we make an independent determination based on the totality of the circumstances and view the evidence in the light most favorable to the State. We reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). We defer to the trial court in assessing witness credibility. E.g., Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999); Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998); Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998).

The trial court denied Griffin’s motion to suppress evidence obtained by means of an illegal search and seizure, and accepted Griffin’s conditional guilty plea and sentenced him to an aggregate of twenty-five years’ imprisonment on the charges of possession of methamphetamine with intent to deliver and simultaneous possession of drugs and a firearm with an additional ten years suspended on the charge of possession of drug paraphernalia. Appellant does not raise an issue of insufficient evidence.

IV Analysis

For his first point on appeal, Griffin argues that the initial entry upon his premises constituted a prohibited search under Article 2, Section 15, of the Arkansas Constitution. He contends that the law enforcement officers made an unlawful intrusion onto his property late at night without a search warrant or probable cause to obtain a warrant. He argues that the search was not the result of a freely and voluntarily given consent to the search.

The State urges that the protections of Article 2, Section 15, of the Arkansas Constitution are not applicable because there was a consent to the search. The trial court’s findings on this point relate in large part to an evaluation of Griffin’s conduct after he answered his door, and began a conversation with the police officers seeking permission to come in and look for a methamphetamine lab. However, we must first address the threshold question of whether an illegal search had commenced before the police officers engaged Griffin in conversation at the sliding glass door.

Accordingly, we address the issue whether an illegal search had already begun before Griffin answered his door. The trial court’s only finding relating to this threshold issue was that the officers did not violate Griffin’s right to privacy by merely knocking on the door and requesting permission to enter his home. This finding might be appropriate to circumstances like those described in Davis, supra, where it is declared that there is no invasion of privacy “for anyone open and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s ‘castle’ with the honest intent of asking questions of the occupant thereof. . . [.]” Id.

However, those factual circumstances are not found in this case. The facts in this case bear little resemblance to those described in Davis, supra. With regard to whether the initial approach by officer Johnson was with an' honest intent of asking questions, we note that Officer Johnson freely testified that the officers lacked probable cause to get a warrant, thereby giving rise to the warrant-less “knock and talk” tactic. On cross-examination of Officer Johnson, the following colloquy occurred:

Q: And you received this information from Officer Etter, Gary Etter?
A: That’s correct.
Q: Now at that point, what information did you have besides Mister Etter’s statement?
A: None.
Q: At that point, did you think you could stop and get a search warrant?
A: No. But I’ve heard in the past where he was selling’ drugs at his optical place down at Valley View.
Q: Well, based on that hearsay or rumor, could you have gone and got a search warrant.
A: No sir.
Q: Okay. In fact, did ya’ll even discuss getting a search warrant?
A: No sir.
Q: Did you attempt in any way to find out the basis for Officer Etter’s statement to you that day or the day before?
A: No sir.
Q: Did he offer you any explanation as to where that information came from?
A: No. People call in and tell us, and we go and check. And if they wanna let us in we do. Eighty percent of ‘em let us come in and look.
Q: Eighty percent of them?
A: Well, I’d say fifty to eighty percent. I mean you ask ‘em if you can come in and look, and they just say come in.

Officer Johnson admitted on cross-examination that any attempt to obtain a search warrant would have been futile because no probable cause existed to support a search warrant. The only information that the officers had was a tip from a fellow officer, and Officer Johnson admits that this information was not enough to obtain a warrant. According to Officer Johnson’s testimony, the officers received the tip earlier in the day, but decided to act on the tip at 10:10 in the evening. This evidence supports a conclusion that the nighttime approach was an effort to search Griffin’s premises without a warrant and without probable cause.

With regard to the issue as to when the search actually began, the predominance of the evidence clearly shows that the four law enforcement officers approached the sliding-glass door of Griffin’s basement residence through the woods from the vicinity of a shed, carrying flashlights so they could see in the pitch-black darkness. We do not consider that these actions conform to the Davis, supra test “for anyone openly and peaceably, at high noon, to walk up the steps and knock on the door of any man’s castle. . . Id. Not only did the actions of the officers not meet the standards related in Davis, supra, the predominance of the evidence clearly shows that an unlawful search had begun before Griffin was summoned to the door.

The officers employed stealth, parking their vehicles where they could not be seen from the entry of Griffin’s residence. They then inspected a parked car because the door was open, and then, either before or after an initial knock, checked out a shed and walked around the premises. Whether the walk around of the shed was before or after an initial knock is of little consequence. We know of no authority for a “knock and search” doctrine holding that after knocking, it is permissible to begin a warrantless search before anyone comes to the door.

Based upon an independent determination of the totality of the circumstances under Burris, supra, we conclude that an illegal search prohibited by Article 2, Section 15, of the Arkansas Constitution had begun before Griffin was summoned to his door and asked for consent to search.

Accordingly, we must reverse and remand for the suppression of evidence obtained by the illegal search. Because this resolves the issue of suppression of the evidence, we need not address the other issues raised by appellant.

Reversed and remanded.

Corbin, Brown, and Hannah JJ., concur.

IMBER, J., not participating.

D IONALD L. CORBIN, Justice,

concurring. I agree with the majority that the evidence in this case was obtained illegally because the officers began their warrantless search before they even attempted to obtain consent. I write separately to emphasize my concern about “knock and talk” searches in general. Before this type of consent search became so fashionable, the police were forced to investigate anonymous or unreliable tips before they could attempt to seize evidence. For example, in this case, the police would have had to attempt a controlled drug buy from Appellant, using the services of a confidential informant or an undercover police officer. With the advent of “knock and talk” procedures, however, the police are free to dispense with actual police work and “cut to the chase” of seizing evidence. In my opinion, “knock and talk” procedures should be used only as an investigative tool, not as a complete substitute for investigation.

Furthermore, I agree with the majority that this type of warrantless intrusion into a person’s home should only be permitted between the hours of 6:00 a.m. and 8:00 p.m., as provided in Ark. R. Crim. P. 13.2(c). If searches conducted pursuant to a warrant, based on a judge’s finding of probable cause, cannot be served after 8:00 p.m. unless the judge makes one of three specific findings, then “knock and talk” searches, based on even less than reasonable suspicion, likewise should be limited. Otherwise, officers will attempt to use the darkness of the night to their advantage, as they did here. It troubles me that the officers in this case intentionally snuck up on Appellant after dark, parking their cars far enough away so that the occupants of the house would not see them.

Even more troubling is that the lead officer in this case, Officer Johnson, admitted that he made a conscious decision not to inform Appellant of his right to refuse consent. Pie explained that he was better off not offering any information because, on some occasions in the past, he has informed suspects of their right to refuse and they denied consent to search. In other words, Officer Johnson intentionally refrained from informing Appellant of his right to refuse because he was afraid that Appellant might actually invoke his right. On this issue, I agree with Justice BROWN that we should interpret the Arkansas Constitution as requiring that the right to refuse consent be explained before “knock and talk” searches will be upheld.

BROWN and Hannah, JJ., join in this concurrence.

R OBERT L. BROWN, Justice,

concurring. In recent years, the phenomenon of the “knock and talk” procedure has come into vogue as a substitute for obtaining either a nighttime or a daytime search warrant. Police officers simply accost a person at his or her home, because they do not have sufficient proof to establish probable cause for a search warrant. The police officers obtain a verbal consent to search the home from the homeowner and proceed with the search. The procedure has been upheld as passing muster under the Fourth Amendment to the U.S. Constitution, regardless of whether it takes place during the day or at night. See, e.g., Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001); United States v. Jones, 239 F.3d 716 (5th Cir. 2001); United States v. Johnson, 170 F.3d 708 (7th Cir. 1999).

What is troublesome about the “knock and talk” procedure, particularly when it occurs at night which was the circumstance in the case before us, is the intimidation factor (usually two to four police officers are involved) and the message conveyed, either verbally or by insinuation, that if a consent is not given, the police officers will simply get a search warrant and come back. “Knock and talk” has become the subject of much debate, in part because it is unclear whether the consenting individual is ever fully aware that he or she can invoke constitutional protections and refuse to give consent. See, e.g., United States v. Jerez, 108 F.3d 684, 691 (7th Cir. 1997) (particularly discussing the inherent coerciveness of a knock- and-talk which occurs “in the middle of the night”); Scott v. State, 366 Md. 121, 782 A.2d 862 (2001); State v. Ferrier, 960 P.2d 927 (Wash. 1998).

The Washington Supreme Court has interpreted its state constitution to require that police officers must inform homeowners of their right to refuse a consent to search before a valid search may commence. See State v. Ferrier, supra. In that case, four police officers conducted a “knock and talk” on the appellant’s home because they did not want to reveal the identity of their informant to a magistrate in order to get a search warrant. The appellant argued that the “knock and talk” at her home violated her right to privacy under the Washington Constitution. The Washington Supreme Court agreed and determined that the Washington Constitution provided greater protection than the U.S. Constitution with respect to the right to be free from unreasonable searches and seizures, id. at 111 (citing State v. Gunwall, 720 P.2d 808 (Wash. 1986)), and held as follows:

[W]e conclude that the knock and talk, as carried out here, violated Ferrier’s state constitutional right to privacy in her home and, thus, vitiated the consent she gave. This is so because she was not advised, prior to giving her consent to the search of her home, that she could refuse consent.

Id. at 115. In imposing the new requirement, the Washington Supreme Court did not distinguish between “knock and talk” searches conducted at day or night. Id. See also Graves v. State, 708 So. 2d 858, 862 (Miss. 1998) (interpreting the Mississippi state constitution to require a “knowledgeable waiver” of the right to refuse consent to search, which is defined as “consent where the defendant knows that he or she has a right to refuse, being cognizant of his or her rights in the premises”).

No state, either by statute or court decision, currently requires that a homeowner sign a written consent form advising that homeowner of a right to refuse the search before the search can begin. Yet, such consent forms are being used by individual law enforcement agencies in Arkansas as came to light in a recent “knock and talk” case submitted to this Court for decision. See Scott v. State, S. Ct. No. CR2000-51 (submitted on review Jan. 10, 2002). I think using consent forms has merit. Requiring a homeowner to execute a consent form before the search begins would be tangible proof that a consent was given. The language of the form, in addition, would ensure that the individual is presented with the fact that consent can be refused. It would not eliminate all controversy surrounding a “knock and talk” consent, but it would remove some of the credibility battles between police officers and homeowners as well as other evidentiary quagmires that currently afflict our courts in this context, much as the Miranda waiver form has done for police interrogations.

A requirement for execution of a written consent form would be consistent with other actions this court has taken to guard against unreasonable searches and seizures under our state constitution. For example, this court has been in the vanguard of other jurisdictions in protecting a person and his or her “castle” against unreasonable searches and seizures at night. See Ark. R. Crim. P. 13.2(c) (setting out specific findings a magistrate must make for a nighttime search). We have strictly enforced this rule and made certain that police officers satisfy its criteria when presenting an affidavit for a nighttime search to a judge. See Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991).

Though I agree with the majority that an invalid search began before the consent was given in this case, I offer the written consent form as additional protection against unreasonable daytime or nighttime searches.

Corbin and Hannah, JJ„ join.

J IM HANNAH, Justice,

concurring. I concur in the decision in this case, but would argue for greater restraints on police use of the “knock and talk.” Article 2, section 15, of the Arkansas Constitution is a limitation on the power of government and provides protection against unlawful search and seizure. Grimmett v. State, 251 Ark. 270-A, 476 S.W.2d 217 (1972). In this case, we are dealing with the search of a home. On a number of occasions, this court has stated the old cliche that “a man’s home is his castle.” Guzman v. State, 283 Ark. 112, 672 S.W.2d 656 (1984); Haynes v. State, 269 Ark. 506, 602 S.W.2d 599 (1980). The protection of the home against unlawful intrusion is of paramount concern. This court has stated that a person’s home should be free from intrusion by outsiders, including the government and its officers. Haynes, supra. In terms of the rights against search and seizure arising under the United States Constitution, the United States Supreme Court in earlier decisions confirmed the statement that illegal entry into a person’s home is the chief evil guarded against by the Fourth Amendment. United States v. United States District Court, 407 U.S. 297 (1972); McDonald v. United States, 335 U.S. 451 (1948). It is also so presently under the Constitution of the State of Arkansas.

In the majority opinion, we now depart from our earlier decisions wherein this court has declared that the Arkansas Constitution provides no greater protection than the Fourth Amendment to the United States Constitution. Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999); Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). We previously noted that the wording of each document is comparable, and through the years, in construing this part of the Arkansas Constitution, we have followed the United States Supreme Court’s cases. Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). Current interpretation of the United States Constitution in the federal courts no longer mirrors our interpretation of our own constitution.

In Arkansas, our constitution requires us to continue to lend greater protection in the area of warrantless searches. This is evident in the fact that a warrantless search is presumptively unreasonable. McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001). More particularly, in this case, we must deal with the issue of oral consent to search and police conduct known as a “knock and talk.”

Here the State claims the right against unlawful search and seizure was waived during the course of the discussion arising from the “knock and talk.” Certainly, the right may be waived. Williams v. State, 237 Ark. 569, 375 S.W.2d 375 (1965). However, in the situation where the police choose to go to a person’s home to seek the opportunity to search, we must be very careful that the police do not abuse their position of power and authority. As noted, a man’s home is still his casde, and of this, this court stated, “The right to this protection is too valuable to entrust to those who are charged with the duty of apprehending criminals and whose duties also require them to locate evidence to prove the guilt of suspects.” Guzman, 283 Ark. at 117.

In Guzman, in expressing this concern, we cited to the United States Supreme Court in McDonald v. United States, 335 U.S. 451, 456 (1948), wherein that Court stated:

Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that Constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.

The “knock and talk” practice of police poses a serious threat to the right of privacy and right against unlawful search and seizure. Our constitution requires that consent to search a home cannot be coerced, explicitly or implicitly, or by threats whether implied or overt. Guzman, supra. Where police go out with bare unsubstantiated allegations of illegal activity and try to gain access to residences and businesses by obtaining oral consent to search, the intent of the police is understandable and clear. The encumbrances placed on police by the requirements of obtaining a search warrant doubtless make the police less effective. However, this court has long held that consent to a warrantless search of one’s home must be given freely and voluntarily. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997); Guzman v. State, supra. The State has a heavy burden to prove by clear and positive testimony that consent was freely and voluntarily given. Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980); Humphrey, supra. See also Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). The State failed to meet its burden in this case.

The facts of this case make clear the danger the police “knock and talk” poses. As the majority opinion notes, the federal courts compare police coming to the front door to salespersons or others who may lawfully approach a person’s door. The validity of this comparison is highly questionable. While there is no doubt a police officer might approach one’s door to sell tickets to the policeman’s ball, or sell raffle tickets to a charity function in the same capacity as a salesperson might, in approaching the door to question an occupant about alleged illegal activities or the presence of contraband, the police officer’s purpose is wholly inconsistent with that of a salesperson. In that case, he or she comes to the door clothed literally in the authority of the State, and likely in the eyes of the house’s occupant, with the greatest power of the State that the average person may ever deal with face to face in his or her life. We ought also to note that the average salesperson generally does not come armed, although that might arguably increase sales.

The facts of this case simply will not support the idea that these police officers were just like the Avon lady or the child selling Girl Scout cookies. First, the average salesperson would likely avoid showing up at the door at 10:00 p.m. While bothering someone so late would likely result in lower sales of cookies, the police showing up so late would make a deeper impression and raise the level of pressure and intimidation. Second, a salesperson would not accuse a person of a felony. That, too, raises the level of anxiety and makes coercion more likely. Third, parking where their car could not be seen is not the likely tactic of the average salesperson who would not perceive taking the customer by surprise as a helpful sales technique. It would, however, have a tendency to catch the occupant of the house off guard and increase pressure to submit. Fourth, although the facts of the number of police officers at the door is in conflict, it is clear there were at least two initially and then four. Avon ladies generally do not travel in packs. Again, the intent is clear — to intimidate and make it more likely the person will give oral consent. Fifth, salespersons don’t generally carry flashlights and check the yard and cars on the way to the door. Sixth, a salesperson would likely go to the front door, not a sliding glass door on the side of the house.

In short, there is nothing in these facts to support a claim that the police were on Griffin’s property for a lawful purpose. It is difficult to imagine that given these facts a person would feel free to decline the officer’s request even under the Fourth Amendment analysis of the federal courts. See Florida v. Bostick, 501 U.S. 429 (1991). In fact, Officer’s Johnson’s testimony indicates he recognized that people he approached on “knock and talks” did not always feel they were free to ignore him.

The “knock and talk” practice is designed to gain entry for a search without obtaining a warrant, and in fact without any form of reasonable cause, or really even reasonable suspicion. It is designed to avoid the encumbrances of all the protections afforded by both the Arkansas and the United States Constitutions. From that perspective alone, the “knock and talk” should be viewed with disfavor.

The intent to avoid obtaining a warrant is apparent from the facts of this case and from the facts of other cases on this issue. The plan is simple. The police show up in force and intimidate the person into giving oral consent. Officer Johnson testified that he would conduct “knock and talks” until midnight, and it is apparent that late at night was the favored time. Absent a showing of exigent circumstances, Johnson could not have executed a search warrant at so late an hour. Ark. R. Crim. P. 13.2(c).

He also testified that using the method noted above, he got consent up to eighty percent of the time. Officer Johnson further testified that he had consent forms, but that he did not use them, and believed he was under no compulsion to advise a person they need not consent to the search. That statement in and of itself reveals acknowledgment that some persons may well have believed they had no choice but to submit to the search. The “knock and talk” raises significant issues, and unfortunately reinforces the concern that law enforcement should not be acting on their own.

The better approach would be to do the necessary police work to entitle the police to a search warrant. The preference in the law is for a warrant, and it is so strong that less persuasive evidence than would support a warrantless search will justify the issuance of a search warrant. State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980).

The police in this case were not faced with any exigent circumstances at all. There was no reason the police had to proceed on the night the police chose to act. The oral consent obtained under the facts of this case is simply not valid consent. Rather than struggle with oral consent in these cases, I believe the better approach, which would be more consistent with our past cases on search and seizure, would be to require signed consent that advises the person of their rights. That would protect against the erosion of the right against unlawful search and seizure posed by the “knock and talk” method being increasingly used by police. The “knock and talk” search carries too high a danger of coerced consent. This has been recognized by other courts. In State v. Ferrier, 960 P.2d 927 (Wash. 1998), the Washington Supreme Court held that in a search arising from a “knock and talk,“police must inform the person that he may refuse consent, revoke consent, or limit the scope of consent. The Mississippi Supreme Court held that under a search resulting from a “knock and talk,” there must be a knowledgeable waiver. Graves v. State, 708 So.2d 858 (Miss. 1997). These courts reached these conclusions based on their state constitutional provisions against unlawful search and seizure, and we should do the same under Article 2, section 15, of the Arkansas Constitution. These courts recognize the danger posed by the “knock and talk,” and that danger is evident here in the high percentage of people who consent. Given the nature of the police conduct, there is a real danger that the persons consenting may believe themselves under restraint, and in consenting, are actually simply obeying the orders of the police they believe they must obey. There is a high likelihood they do not understand they have the right to refuse consent. Thus,

I concur in the result in reversing this case, but I would require that in the future, the police obtain written consent notifying the person of their rights and a knowledgeable waiver.

Corbin and Brown, JJ., join in this concurrence.

       In Gunwall, the Washington Supreme Court developed six factors which govern whether or not it will extend greater protection under its constitution than the federal courts extend under the federal constitution. One of those factors is whether the wording of relevant state and federal constitutional provisions is similar.
      While Arkansas’s analog to the Fourth Amendment is worded similarly, that is not a barrier to our extending greater protections under the Arkansas Constitution. Other state courts have done so. See, e.g., Virmani v. Presbyterian Health Serv. Corp., 350 N.C. 449, 515 S.E.2d 675 (1999) (“We have said that even where provisions of the state and federal Constitutions are identical, ‘we have the authority to construe our own constitution differently from the construction by the United States Supreme Court of the Federal Constitution, as long as our citizens are thereby accorded no lesser rights than they are guaranteed by the parallel federal provision.’ ”); People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745 (1982) (finding greater protection under state constitution despite similar wording of relevant federal and state search and seizure provision).


author: P ER Curiam.

text:
    Charles WORTHEM v. STATE of Arkansas
    CR 01-1207
    66 S.W.3d 665
    Supreme Court of Arkansas
    Opinion delivered February 28, 2002

      Appellant, pro se.

      Mark Pryor, Att’y Gen., by: O. Milton Fine, II, Ass’t Att’y Gen., for appellee.
   P ER Curiam.

Appellant was convicted of committing rape by engaging in deviate sexual activity with ano.ther person who was less than fourteen years of age. Fie was sentenced to thirty years’ imprisonment in the Arkansas Department of Correction. On direct appeal, the Court of Appeals affirmed. Worthem v. State, No. CACR 00-1021 (Ark. App., May 2, 2001) (unpublished). The mandate issued May 22, 2001.

On July 3, 2001, Appellant filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The State moved for dismissal of the petition, asserting that it was not verified pursuant to Ark. R. Crim. P. 37.1(d). Appellant then filed a verified petition on August 6, 2001. The State again moved for dismissal of the petition on the ground that the second, verified petition was not filed within sixty days of the entry of judgment as required by Ark. R. Crim. P. 37.2(c), and therefore, the circuit court did not possess jurisdiction to grant the requested relief. The circuit court thereafter dismissed the petition without conducting a hearing, finding that appellant’s first petition lacked verification, and concluding that appellant’s second petition was untimely filed. We find no error and affirm.

Rule 37.1(d) requires that a party seeking to attack a sentence must file a verified petition in the court which imposed the sentence. This court has recognized that the verification requirement of Rule 37.1 is one of substantive importance to prevent perjury. Carey v. State, 268 Ark. 332, 333, 596 S.W.2d 688, 689 (1987). Petitions that are not in compliance will not be filed without leave of the court. Ark. R. Crim. P. 37.1(e). Rule 37.2(c) states that if an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty days of the date the mandate was issued by the appellate court. Porter v. State, 339 Ark. 15, 18, 2 S.W.3d 73, 75 (1999). We have held that the fifing deadlines imposed by this section are jurisdictional in nature and that if they are not met, a circuit court lacks jurisdiction to consider a Rule 37 petition or a petition to correct an illegal sentence on its merits. Id.

Appellant’s first petition lacked verification, and therefore, was invalid. Appellant’s second petition was not filed within the sixty-day time limit of Rule 37.2(c). As such, the circuit court lacked jurisdiction to grant the relief requested. Accordingly, the circuit court did not err in dismissing appellant’s Rule 37 petitions.

Affirmed.