dissenting. “Reasonableness” is the linchpin of Fourth Amendment analysis. The prohibition against unreasonable searches and seizures protects citizens from pohce misconduct and overreaching; however, it does not require that pohce be infallible and free from ah mistakes. As stated by the Supreme Court of the United States:
It is apparent that in order to satisfy the “reasonableness” requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government •— whether the magistrate issuing a warrant, the police officer executing a warrant, or the pohce officer conducting a search or seizure under one of the exceptions to the warrant requirement — is not that they always be correct, but that they always be reasonable.
Illinois v. Rodriguez, 497 U.S. 177, 185 (1990).
In the instant case, Deputy Srite testified that after Mr. EUis and the appellant were outside of the house, there was a woman (Ms. Allen) standing in the doorway to the house. Deputy Srite approached Ms. Allen and asked her if there was some place they could talk.1 He stated that she opened the door and “indicated to me to come in.” Before launching into a Fourth Amendment analysis, the deputy’s options should be considered. If Ms. Allen had simply come out of the house to talk oñtside, there is no question that he could not have entered the house. If, on the other hand, Ms. Allen had retreated into the house and told the deputy that he could not enter, again he would be barred from lawful entry. However, her gesture of invitation (without considering at this time whether she had the authority to invite) must be considered clear and reasonable.
The first question to be answered is whether Deputy Srite, by simply entering the house at Ms. Allen’s invitation, was “searching.” Although the dictionary definition of “search” requires an intent to probe on the part of the searcher, the Supreme Court of the United States has recognized a “search” for Fourth Amendment purposes as an intrusion by the State of an area in which an individual has manifested a subjective expectation of privacy, and society is willing to recognize that expectation as reasonable. See Kyllo v. United States, _U.S. _, 121 S.Ct. 94 (2001); California v. Ciraolo, 476 U.S. 207 (1986). The very core of the Fourth Amendment is “the right of a man to retreat into his own home and there be free from governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511 (1961). With few exceptions, a warrantless search of a home is presumptively unreasonable. See Illinois v. Rodriguez, 497 U.S. 177 (1990); Payton v. New York, 445 U.S. 573 (1980). Therefore, Deputy Srite’s mere act of crossing the threshold of appellant’s home does indeed constitute a warrantless search. However, the constitutional prohibition against warrantless searches is not applicable if voluntary consent has been obtained, either from the individual whose property is searched, see Schneckloth v. Bus-tamonte, 412 U.S. 218 (1973), or from a third party who possesses common authority over the premises, see United States v. Matlock, 415 U.S. 171 (1974). In this case, the person who admitted the officer, Ms. Allen, was later determined to be a visitor who had no common authority over the premises. The questions now become whether Ms. Allen voluntarily consented to the search and whether the officer could reasonably rely on the consent.
Failure to object to a search does not constitute consent. United States v. Gonzalez, 71 F.3d 819 (11th Cir. 1996). In this case, there was not merely a failure to object — the officer never asked to come in. His inquiry was only for a place to talk.2 The person offering the house as the location for the “talk” was Ms. Allen. Her gesture was clear to the officer, whose testimony was believed by the trial judge. On matters of credibility we defer to the trial court. Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998).
In assessing the voluntariness of Ms. Allen’s consent we again look to the reasonableness standard. The facts in this case are almost identical to those in United States v. Turbyjill, 525 F.2d 57 (8th Cir. 1975). In that case, the officers went to appellant’s home in the course of a counterfeiting investigation and knocked on the door. A friend of the appellant’s named Church answered the door, and after the officers identified themselves, Church backed away from the door and they entered. The officers’ entry was not preceded by either verbal or written consent. After entry, the officers observed marijuana in plain view, leading to the eventual charges against the appellant. The Eighth Circuit upheld the initial entry and stated:
An invitation or consent to enter a house may be implied as well as expressed. There was no error in the determination of the district court that the action of Church in the opening of the door and stepping back constituted an implied invitation to enter.
525 F.2d at 59 (citations omitted).
The majority, in the instant case, holds that the trial court’s finding that Ms. Allen consented to the entry of the officer is clearly against the preponderance of the evidence. They rely on Norris v. State, 338 Ark. 397, 933 S.W.2d 918 (1999) (quoting United States u Gonzalez, supra), for the proposition that implied or inferred consent is not valid under the Fourth Amendment. However, Norris supports affirmance of this case in all respects.
In Norris, the officer went to the appellant’s home on the tip of a citizen that the appellant was driving erratically. The door was answered by the appellant’s mother-in-law (Ms. Wise) who testified that she admitted the officer into the house because the dogs were making a disturbance and for no other reason. Once inside, she went down the hall to get the appellant, and the officer followed her without asking permission and without invitation. The supreme court first examined whether the mother-in-law, who did not live in the home, had the authority to consent to the entry. The court, citing Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (1979), held that so long as a searching police officer reasonably believes that a person giving consent has authority to do so, the consent is valid, notwithstanding a later determination that the consentor had no such authority. The court then reversed the case based on the officer’s act of following Ms. Wise down the hall to the back of the house. The court upheld the initial entry and discussed the issue of implied consent only with relation to the uninvited entry to the back of the house.
The analysis again returns to reasonableness. What an individual is assured by the Fourth Amendment itself is not that no government search of his house will occur unless he consents, but that no such search will occur that is “unreasonable.” Illinois v. Rodriguez, 497 U.S. 177 (1990). The invitation Ms. Allen offered for entry into the house was clear in the mind of Deputy Srite. He testified that he thought that she lived there with the appellant and that she had authority to let him enter. Although that conclusion was erroneous, it was not unreasonable. “Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.” Id. at 186 (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). The United States Supreme Court has upheld as reasonable the entry into an appellant’s residence under the invitation of a third party who had no authority to consent, but who the officer reasonably believed did have such authority. This conclusion was stated with the classic definition of reasonableness:
As with other factual determinations bearing upon search and seizure, determination of consent to enter must “be judged against an objective standard: would the facts available to the officer at the moment . . . ‘warrant a man of reasonable caution in the belief ” that the consenting party had authority over the premises? If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.
Id. at 188. Because here the officer acted reasonably when he entered the appellant’s house upon the invitation of Ms. Allen, who he reasonably believed had authority to invite him in, I would uphold the warrantless entry into the appellant’s home.
Once inside the house the officer immediately detected the strong odor of marijuana. Having concluded that his entry into the home was lawful, the evidence in the form of the odor was detectable without a warrant pursuant to the “plain smell” doctrine. United States v. Roby, 122 F.3d 1120 (8th Cir. 1997). The officer then asked Ms. Allen where the marijuana was, and she produced it. He next inquired if she lived there. After receiving a negative response, the officer immediately exited the house and sought (and received) the written consent of the appellant to complete the search. Unlike the investigator in Norris, Deputy Srite did not take advantage of his lawful entry to expand the scope of his search to other parts of the house. He acted “reasonably” by inquiring, at the first detection of possible contraband, about ownership of the house. I would, therefore, uphold the seizure of the marijuana produced by Ms. Allen after Deputy Srite detected its odor, and the seizure of the items found in the search subsequent to the written consent of the appellant. Accordingly, I would affirm the denial of the motion to suppress.
I am authorized to state that Judge Bird joins me in this dissent.Deputy Srite’s request to interview Allen was permissible under Rule 2.2(a) of the Arkansas Rules of Criminal Procedure, which provides that “[a] law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of a crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any reasonable request.”
The majority makes much ado about testimony that the officer “may” have had his gun drawn when he approached the house. However, a careful review of the abstract indicates that Deputy Srite testified that he may have drawn his gun during his initial approach to the scene, prior to the arrest of Ellis and appellant. There is no testimony that he had his gun drawn at any time during this subsequent approach to the home for the express purpose of interviewing Ms. Allen.