Griffin v. State

• Decision Date: 28 February 2002
• Docket Number: No. CR 00-1475.,CR 00-1475.
• Citation: 347 Ark. 788,67 S.W.3d 582
• Parties: David GRIFFIN v. STATE of Arkansas.
• Court: Arkansas Supreme Court

67 S.W.3d 582

347 Ark. 788

David GRIFFIN v. STATE of Arkansas.

No. CR 00-1475.

Supreme Court of Arkansas.

February 28, 2002.

Miller Law Firm, by: Leslie Borgognoni for Randel Miller, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by: Katherine Adams, Ass't Att'y Gen., Little Rock, for appellee.

RAY 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 latenight 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, 121 S.Ct. 1876, 149 L.Ed.2d 994 (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, 95 S.Ct. 1215, 43 L.Ed.2d 570 (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 limiting 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 warrantless 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); United States v. Cruz, 838 F.Supp. 535, 543 (D.Utah 1993); 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...