State v. Brown
| Decision Date | 25 March 2004 |
| Docket Number | No. CR 03-914.,CR 03-914. |
| Citation | 356 Ark. 460,156 S.W.3d 722 |
| Parties | STATE of Arkansas v. Jaye M. BROWN and Michael C. Williams. |
| Court | Arkansas Supreme Court |
Mike Beebe, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., Little Rock, for appellant.
Dale W. Finley, Russellville, for appellee.
The State of Arkansas appeals an order suppressing contraband seized from the home of appellees Jaye Brown and Michael Williams. The State raises two points on appeal: (1) that the circuit court erred in holding that Article 2, § 15, of the Arkansas Constitution 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; and (2) that the circuit court erred by holding under the same constitutional provision that police officers must disclose all information known to them before a consensual search may be found to be voluntary. We hold that the circuit court correctly concluded that a home dweller must be advised of his or her right to refuse consent in order to validate a consensual search under the Arkansas Constitution. For that reason, we affirm.
The facts are that on August 23, 2002, at about ten o'clock in the morning, three agents of the Fifth Judicial District Drug Task Force (Chris Ridenhour, Johnny Casto, and Shawn Armstrong) approached the residence of appellees Brown and Williams in Russellville. They did so because of information received from two anonymous sources that Brown and Williams were involved in drug activity and that a small child inside the trailer had become ill due to drug manufacturing. Upon reaching the door to the trailer home, they smelled a strong and familiar chemical odor. Agent Ridenhour knocked on the door, and Brown answered. The agent told her that the three agents had information that someone was possibly growing marijuana there or there was other illegal drug use at the residence and that they wanted to investigate.
Brown asked the agents to wait a minute. She closed the door but then returned a short while later. Agent Ridenhour presented her with a consent-to-search form to sign which read:
CONSENT TO SEARCH
I give permission to the 5th Judicial District Drug Task Force to search my vehicle/residence (circle one) for contraband or illegal items.
Person giving consent
Officer:
Date and Time
Jaye Brown and Officer Ridenhour signed the consent form. Jaye Brown did not circle "vehicle" or "residence." A search of the residence by the agents ensued.
At that point, appellee Michael Williams, who apparently had been asleep, emerged from the bedroom. There was also a child present in the trailer home. Agent Armstrong observed evidence of methamphetamine use. Agent Ridenhour looked in the bedroom and saw evidence of precursors used to manufacture methamphetamine. Brown and Williams were arrested, and Agent Ridenhour subsequently sought and received a search warrant to search the residence and seize any evidence or contraband found. The search warrant was executed, and evidence of methamphetamine manufacture and usage as well as marijuana growth and possession was seized. Brown signed a statement that same day which said that Williams was manufacturing methamphetamine and that she told him to stop. Williams also signed a statement and admitted to the manufacture and use of methamphetamine. He said in his statement that he had been living with Brown for about four years. Brown and Williams were later charged with manufacture of methamphetamine and marijuana and possession of methamphetamine with intent to deliver.
Brown and Williams filed separate motions to suppress the evidence seized, because, they contended, it was seized as part of an illegal search. Williams specifically raised the issue of an invalid search under Article 2, § 15, of the Arkansas Constitution. A hearing ensued before the circuit court. Brown testified at the hearing that she was told that the agents wanted permission to search for marijuana. She said she signed the consent form because she thought she had to do so. She testified: "Thought I had no choice but to sign it." She added that she did not know that she could say "no" and not sign it. Williams also testified that the agents announced that they were searching for marijuana.
Agent Ridenhour testified at the hearing that the agents did not tell Brown that she was not required to sign the consent form. Agent Armstrong testified that it was not Drug Task Force policy to advise occupants that they did not have to consent to a search. Agent Ridenhour testified that he told Brown that the search would be for marijuana and "other illegal use of drugs." He admitted, however, that methamphetamine was not mentioned. He testified that he did not advise her that she could refuse to sign the form.
On June 13, 2003, the circuit court issued a letter opinion, which read:
The facts of this case represent the concerns the Arkansas Supreme Court Justices had in the recent case of Griffin v. State, 347 Ark. 788, 67 S.W.3d 582.
In the present case Officer Ridenhour testified about a phone call advising him of a child at defendants' residence being sick because of drugs. The drug task force went to the mobile home residence. Officer Ridenhour talked with defendant Brown and told her he had information that there was marijuana in the residence or that it was being grown there. There was no mention of a child being sick because of drugs. The officers obtained a written consent from defendant Brown and entered the residence.
It is undisputed the officers did not have probable cause for a search warrant at the time a consent to search was obtained.
The "knock and talk" procedure used in this case is simply a way to avoid the burden placed on law enforcement officers in obtaining a search warrant.
It would appear that if deception were used in stating the purpose of a requested search then a consent obtained would not be an informed and valid consent.
This Court feels that a "knock and talk" policy of police officers can survive a constitutional challenge only if the right to refuse consent is in writing or is explained before consent is obtained.
Based upon the above factors, this Court feels that the consent to search obtained in this case was not valid; therefore, the motions to suppress filed by both defendants should be granted.
An order was entered that same day granting the two motions to suppress.
We first address whether this court has jurisdiction to hear this State appeal pursuant to Arkansas Rule of Appellate Procedure — Criminal 3. The State contends that we do because the appeal implicates Article 2, § 15, of the Arkansas Constitution and whether that section of our state constitution requires that a home dweller be advised of the right to refuse a consent to search prior to a consent being given. We agree with the State that this appeal raises a significant search-and-seizure issue involving the procedure known as "knock and talk." Accordingly, it is a matter which concerns the correct and uniform administration of the criminal law which requires review by this court. See Ark. R.App. P.-Crim. 3(c). See also State v. Pruitt, 347 Ark. 355, 64 S.W.3d 255 (2002). This court has jurisdiction to review the matter.
The State raises two issues relating to a consensual search. It first contends that the Arkansas Constitution does not require that police officers must advise home dwellers that they have the right to refuse consent to search. Secondly, the State claims that our state constitution does not require police officers to disclose all information known to them before a consensual search may take place. According to the State, the circuit judge in the case at hand decided to suppress the evidence seized for both reasons. Because we conclude that the circuit judge correctly construed the Arkansas Constitution to require law enforcement officers to advise home dwellers of their right to refuse to consent to a search, we need not address the second point raised by the State.
This case presents the second opportunity for this court to consider whether the police procedure known as "knock and talk" is constitutionally permissible under Arkansas Constitution Article 2, Section 15, in the past two years. In Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002), a constitutional attack was mounted against the procedure under our state constitution. We decided that case, however, on the ground that police officers had begun an illegal search of the defendant's car and shed before they approached the defendant's front door to ask for consent to search. Hence, the Griffin opinion did not decide the validity of the "knock-and-talk" procedure under our state constitution. Nevertheless, in three concurring opinions, the "knock-and-talk" procedure was called into question under the state constitution by three justices of this court. See Griffin v. State, supra (Corbin, J. concurring; Brown, J. concurring; Hannah, J. concurring).
A brief description of the "knock-and-talk" procedure is in order. The procedure has become fashionable as an alternative to obtaining a search warrant when police officers do not have sufficient probable cause to obtain a search warrant. What generally occurs is that several law enforcement officers accost a home dweller on the doorstep of his or her home and request consent to search that home. If an oral consent is given, the search proceeds. What is found by police officers may then form the basis for probable cause to obtain a search warrant and result in the subsequent seizure of contraband. It is the intimidation effect of multiple police officers appearing on a home dweller's doorstep, sometimes in uniform and armed, and requesting consent to search without advising the home dweller of his or her right to refuse consent that presents the constitutional problem.
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