TOM GLAZE, Justice, dissenting. Today, a 4–3 divided court issues an opinion that makes a radical change in Arkansas search and seizure law. The decision is clearly contrary to prior law and the change is totally unwarranted and unnecessary. Initially, I point out the obvious mistakes the four-member court has made in its refusal to follow the Fourth Amendment, as it protects all citizens against unlawful searches.
First, the majority's members seem to treat the so-called "knock and talk" as a brand new procedure used by law enforcement officers. Such a procedure has been around for a long time, and merely allows officers to request a home dweller's consent to search his or her dwelling. In this type of situation, the officers have some information that an illegal activity may be occurring inside the home, but the officers do not have sufficient evidence (probable cause) to obtain a search warrant.
Our court has long recognized an officer's right to request a suspect's consent to search the home, under limited circumstances. See Ark. Rule Crim. P. 11.1. Rule 11.1 provides as follows: "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." This court's commentary to Rule 11.1 also makes it clear that an officer seeking consent to search from suspects does not have to advise them that they may refuse to consent. (Emphasis added.) The majority opinion completely ignores Rule 11.1, and instead reaches a conclusion which is in clear conflict with the rule.
After the dissenting opinion cited King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977), as controlling here, the majority court opted to overrule, rather than follow it. The King court considered the very issue now before us: whether Ark. Const. art. 2, § 15 requires that advice of the right to refuse consent be given by law enforcement officers before a consensual search may be found to be voluntary. In King, the court held no; here, the majority says yes. In other words, this court simply refuses to follow precedent.
Since the majority opinion fails to even so much as describe the facts or analyze the reasoning in King, I will. There, King was convicted of theft, and he contended the trial court erred in denying his motion to suppress evidence secured by a warrantless search. He asserted the search was unreasonable under the federal Fourth Amendment and Ark. Const. art. 2, § 15. The trial court ruled that the search was conducted pursuant to a valid consent, and rejected King's argument that a search warrant should have been obtained. Citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973), this court upheld the lower court, stating: "[it] is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent."
As in the present case, the King court dealt with whether the State failed to prove that the consent was voluntarily given because of the coercive nature of the confrontation. The King court stated the general rule that the voluntariness of consent is a question of fact to be determined from the totality of the circumstances, and the burden is on the State to prove that consent was voluntarily given by clear and positive proof. Id.
Here, the key issue to consider is whether the trial court was correct in ruling that the officers' search could have met constitutional muster only if they had informed Jaye M. Brown, Michael C. Williams' co-occupant, that she had the right to refuse consent before any consensual search would be valid under the Arkansas Constitution. This court decided the issue in the King decision, which reads as follows:
Appellant [King] further argues that even if the consent was voluntarily given, the state should be required to prove a knowing and intelligent waiver and since Mrs. Griggs was not told of her right to refuse consent to the search, the search was invalid. However, a knowing and intelligent consent is not required by our Federal Constitution. In Schneckloth v. Bustamonte, supra, the [Supreme] Court said:
There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. Nothing either in the purpose behind requiring a 'knowing' and 'intelligent' waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.
Rather, knowledge of the right to refuse consent is only a factor to be considered in determining the voluntariness of consent and the state is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. United States v. Watson, 423 U.S. 411 (1976); and Schneckloth v. Bustamonte, supra. Even so, appellant [King] urges that since each state has the power to impose higher standards on searches and seizures under its own laws or constitution than are required by our Federal Constitution, we should impose a greater standard than articulated in Schneckloth. In our view the Schneckloth standard of required proof in consent to search is adequate under the terms of our constitution. Art. 2, § 15, Ark. Const. (1874). Although it appears Mrs. Griggs was not verbally informed of her right to refuse consent, she signed a consent to search her premises and a waiver of her right to be free from unreasonable searches and seizures. She acknowledged that the consent and waiver form was read to her, she understood and signed it.
King, 262 Ark. at 346-47 (emphasis added).
As one can readily see, this court in King considered the question of whether, under art. 2, § 15, officers must advise a home dweller of his or her right to refuse consent before the officers can legally search the person's home. This court answered the question with a resounding "no," and went into considerable detail as to why a suspect's knowledge of the right to refuse consent is only a factor to be considered in determining the voluntariness of a consent. The King decision had been good law since 1977, and the majority opinion glibly overrules it, apparently for the reason that case's holding stands in the way of the outcome the majority desires to reach.
Our recent cases, however, remain consistent with King. For example, this court has noted that, on the issue of consent searches, we interpret Arkansas law in a manner consistent with federal law. That federal law is followed by a host of Arkansas cases, stating that a person's knowledge of the right to refuse consent to search is not a requirement to prove the voluntariness of consent. See Latta v. State, 350 Ark. 488, 88 S.W.3d 833 (2002) (court stated that, in most situations 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); Scott v. State, 347 Ark. 767, 57 S.W.3d 567 (2002) (court primarily looked to federal court appellate decisions, noting that every federal appellate court which has considered the question has concluded that the "knock and talk" or consensual search procedure is not per se violative of the Fourth Amendment) (emphasis added).[1] This court's holdings in Latta and Scott merely follow the rationale set forth in King. Other states also have recently come to the same conclusion.[2]
Arkansas case law has predictably and repeatedly adhered to the general rule set forth in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), that "voluntariness of consent" is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse consent is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a sole prerequisite to establishing a voluntary consent. To this effect, see Latta, supra; Scott, supra; Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997); Duncan v. State, 304 Ark. 311, 802 S.W.2d 917 (1991); Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980); McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979); King, supra; Reeves v. State, 258 Ark. 788, 528 S.W.2d 924 (1975).
In light of this court's longstanding adherence to the general rule on consensual searches set out in the foregoing Arkansas and federal cases, the question to be asked is, why has this court precipitously decided to adopt a new rule in Arkansas regarding consensual searches? The majority opinion offers no convincing reason why this court should jettison well-settled Arkansas case law and its own Rule 11.1 on consensual search and seizure. Instead, the majority court, without a compelling reason, substitutes a new interpretation of Ark. Const. art. 2, § 15, and now, for the first time, requires a resident to be advised of his or her right to refuse consent before a consensual search can be valid.
The majority opinion merely provides that, after today, it will no longer look to the Fourth Amendment to protect Arkansas citizens regarding consensual searches. Instead, the majority claims it wishes to grant greater protection to Arkansas residents by applying the Arkansas Constitution and giving a new interpretation to article 2, § 15, which is the same thread-bare argument put before this court and rejected in the King case in 1977. In other words, even if the resident/suspect voluntarily gives a consent to search, the search will be invalid unless the officers says the magic words, "You have the right to refuse to consent to this search."
The majority court offers no evidence that the Fourth Amendment has failed to protect Arkansas residents from illegal searches. Nor does the majority court show that Arkansas law enforcement officers are abusing or misusing searches performed under the Fourth Amendment analysis, which Arkansas courts have recognized and applied over past decades. If there are such abuses by Arkansas law enforcement officers, this court should reveal them.
To my knowledge, our courts have applied the Fourth Amendment analysis in consensual searches, and, while that analysis may not be perfect, the Fourth Amendment mandates that Arkansas courts must consider the totality of the circumstances when officers obtain a subject's consent to enter his or her residence. Requiring an officer to advise the suspect that he or she has a right to refuse consent to a search in no way assures that future questions concerning illegal searches will be abated. For example, our court's review of whether an officer informed the resident that he or she had the right to refuse consent will continue to depend on the credibility of the officer or resident. The threshold question remains: Did the officer give the required admonition (you have the right to refuse to consent) to the resident, and, if the officer did, does the court then consider all other surrounding circumstances that may bear on the validity of the search?
Also, it is more than passing strange that the majority has just now decided to construe Ark. Const. art. 2, § 15 differently, since Arkansas' constitutional provision is virtually identical to the Fourth Amendment.[3] Because article 2, § 15 is almost identical to the language found in the Fourth Amendment, our court in past decisions has justifiably and reasonably adopted the same Fourth Amendment analysis used by the United States Supreme Court and the federal appellate courts when considering search and seizure issues. As a consequence, this court's decisions interpreting art. 2, § 15 have become a part of that constitutional provision. See Nelson v. Timberline Int'l, Inc., 332 Ark. 165, 964 S.W.2d 357 (1998) (when a constitutional provision or a statute has been construed, and that construction is consistently followed for many years, such construction should not be changed) (emphasis added); Morris v. McLemore, 313 Ark. 53, 852 S.W.2d 135 (1993) (the interpretation given a statute becomes a part of the statute itself). In giving art. 2, § 15 a different interpretation than this court has done in past years, the court, once again, overlooks or ignores its own precedent.
Finally, it is especially noteworthy to mention the case of Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). There, this court emphasized the similar wording of art. 2, § 15 and the Fourth Amendment, and specifically held that, in search and seizure conflicts, the court will construe our Constitution in a manner consistent with the Supreme Court's interpretation. The majority attempts to sidestep Stout by stating that case involved a motor vehicle and not a residence as in the case now before us. The majority court fails to cite any case law for such an interpretation. In short, the cases cited above in this opinion have construed art. 2, § 15 to cover both motor vehicles and homes.
The majority opinion cites the case of Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2000), for the legal principle that a person's home is a zone of privacy and it is as sacrosanct as any right or principle under our state constitution and case law. It also cites Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002); Griffin, however, was not a "knock and talk" consensual search case and is clearly not relevant here. The Jegley case, too, is inapposite. In brief terms, Jegley was a civil case that challenged the Arkansas sodomy statute, Ark. Code Ann. § 5-14-122 (Repl. 1997), which this court held unconstitutional as a matter of law. While this court in Jegley discussed Arkansas citizens' right of privacy, such a right is also recognized by the Constitution of the United States. Our courts have held that such intrusions are presumptively unreasonable under the Fourth Amendment. Clearly, this country's Fourth Amendment was adopted to protect citizens from warrantless entry into a private home, and, in order to protect citizens against such warrantless intrusions to do so is presumptively unreasonable under the Fourth Amendment. The State has the burden to prove a warrantless entry into a home is reasonable. Under Scott, supra, when a warrantless entry into the home is made with consent, the entry does not violate the Fourth Amendment. Id.
Finally, with respect to the majority's overruling of King, it is important to note that the majority relies on cases wherein this court "overruled other cases based on an evolving statement of public policy from our General Assembly." Of course, this court has held repeatedly that the determination of this state's public policy "lies almost exclusively in the legislative domain." See Bonds v. Carter, 348 Ark. 591, 75 S.W.3d 192 (2002); Jordan v. Atlantic Cas. Ins., 344 Ark. 81, 40 S.W.3d 254 (2001); State v. Lester, 343 Ark. 662, 75 S.W.3d 192 (2002). Indeed, in Miller v. State, 338 Ark. 445, 994 S.W.2d 476 (1999), this court stated that "the public policy of the State of Arkansas is declared by the General Assembly, not its courts." Here, however, the majority takes it upon itself to declare, essentially, by judicial fiat, that it knows better than the General Assembly what our public policy should be.
In conclusion, because the trial court (with the majority's aid) has misinterpreted and misapplied Arkansas' consent-to-search law, I would reverse and remand this case for the trial court to consider the voluntariness of Brown's consent from the totality of the circumstances.
DICKEY, C.J., and IMBER, J., join this dissent.
- ↑ In support of this statement, the Scott court cited the following federal cases: United States v. Severe, 29 F.3d 444 (8th Cir. 1994); Rogers v. Pendleton, 249 F.3d (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); United States v. Jerez, 108 F.3d 684 (7th Cir. 1997); United States v. Cormier, 220 E3d 1003 (9th Cir. 2000) (the 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 violate his consent to search). See also United States v. Kim, 27 F.3d 947 (3rd Cir. 1994); United States v. Tobin, 923 F.2d 1506 (11th cir. 1991).
- ↑ For example, the Scott court reported the following: Iowa in State v. Reiner, 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.W 2d 210 (1997). Scott, 347 Ark. at 779; see also State v. Green, 598 So.2d 624 (La. Ct. App. 1992); State v. Land, 106 Or. App. 131, 806 P.2d 1156 (1991).
- ↑ U.S. Const. amend. 4 reads as follows:
Unreasonable searches and seizures. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Ark. Const. Art. 2, § 15 provides the following:
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; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.