concurring. I agree with the majority to affirm appellant’s conviction. Nonetheless, I write separately to express my view that our law should require police officers conducting a “knock and talk” to inform individuals that they have a right to refuse or to revoke their consent to search.
The Fourth Amendment, which is applicable to the states through the due process clause of the Fourteenth Amendment, protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” See U. S. Const, amend. IV. See also Terry v. Ohio, 392 U.S. 1 (1968). In a similar vein, article 2, section 15, of the Arkansas Constitution 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.”
As often stated, Fourth Amendment rights are personal and the primary focus of the amendment is on the protection of persons, not the protection of locations. See Katz v. United States, 389 U.S. 347 (1967). However, because individuals have a high expectation of privacy in their homes, our courts require voluntary consent absent other grounds to effectuate a warrantless search of the home. See Payton v. New York, 445 U.S. 573 (1979). Indeed, physical intrusion into the privacy of a person’s residence absent a warrant is the primary evil that the Fourth Amendment seeks to eradicate. See United States v. Miller, 933 F. Supp. 501 (M.D. N.C. 1996).
Although our appellate courts have not had the opportunity to extensively address “knock and talk,” this procedure is recognized as a legitimate police method to obtain valid consent to search a residence. See United States v. Powell, 929 F. Supp. 231 (S.D.W.V. 1996). In a typical “knock and talk” situation, the police will receive information that drugs are within a residence. However, because the police do not have probable cause to obtain a warrant, they will approach the residence, knock on the door, and ask for permission to enter. Once inside, the officers will tell the resident that they are following up on information that drugs are inside the home. The officers will then ask the resident for permission to search the residence. See, generally, State v. Smith, 488 S.E.2d 210 (N.C. 1997).
Consent to conduct a search of a person’s home without a warrant is a recognized exception to the presumption that searches and seizures inside a home without a warrant are unreasonable. See United States v. Miller, 933 F. Supp. 501 (1996) (M.D. N.C.) 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. See United States v. Mendenhall, 446 U.S. 544 (1980). However, whether a person had knowledge of the right to re&se 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. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Because the legitimacy of a “knock and talk” procedure hinges on whether the police gained voluntary consent to search the residence, the relatively few jurisdictions that have reviewed the appropriateness of this procedure have discussed consent.
In the seminal case of State v. Ferrier, 960 P.2d 927 (Wash. 1998), the Washington Supreme Court determined that police officers conducting a “knock and talk” procedure must inform a person that he may refuse consent, revoke consent, or limit the scope of the consent. In Ferrier, supra, the police went to Ferrier’s residence to follow-up on information received by her son that Ferrier was conducting a marijuana grow operation at her home. Because the officers were unsure that the information was credible, they decided to conduct a “knock and talk.” Four armed officers, wearing raid jackets, knocked on Ferrier’s door. After they identified themselves, Ferrier allowed the officers entry. The officers told Ferrier about' the information they had obtained. They then asked ■Ferrier for consent to search the premises and asked her to sign a written consent form. Flowever, the written form did not indicate that Ferrier had the right to refuse consent, and the officers admitted at trial that Ferrier was not told she had such a right. The Ferrier court noted that warrantless searches are presumptively invalid, and that Washington law provided additional protection against unlawful government intrusions. It then held that under the enhanced privacy expectation of the state constitution, the police violated Ferrier’s right to privacy by failing to inform her that she had a right to refuse consent. See Ferrier, supra.
The Mississippi Supreme Court recently reviewed the issue of “knock and talk,” and held that consent requires a knowledgeable waiver. See Graves v. State, 708 So.2d 858 (Miss. 1997). In other words, the defendant must know that he has a right to refuse to give consent, and must be cognizant of his rights in the premises.
As noted by appellant, “knock and talk” is a successful police tool because many individuals will not question the absence of a search warrant, either because they are unaware that the police must have a warrant to search the home absent exigent circumstances, or because they are “too stunned by the circumstances to make a reasoned decision about whether or not to consent to a warrantless search.” See Ferrier, supra.
Under Arkansas law, police officers may search a residence without a warrant when the resident freely and voluntarily consents to the search. See Burdyshaw v. State, 69 Ark. App. 243, 10 S.W.3d 918 (2000). Although the State bears the burden of proving by clear and convincing evidence that the resident freely gave consent to search, the State does not bear the burden of proving that the resident knew that he was free to refuse consent in order for the consent to be deemed voluntary. See id. Regrettably, Arkansas law simply does not require that police inform a resident that he has a right to refuse to give consent and the right to revoke consent after a search begins. Thus, there is no guarantee that an individual who voluntarily consents to a warrandess search had the requisite knowledge to make an informed decision. Hopefully, our supreme court will remedy this shortcoming by holding that the State must prove that consent to a search has been knowingly and intelligently given.