dissenting. This case involves a failed knock-and-talk. Police officers went to Keenom’s trailer at 11:30 p.m. after observing him four hours earlier twice buy known ingredients for “cooking” methamphetamine at Wal-Mart. Each time, Keenom only made meth-related purchases. The police officers talked to Keenom outside his trader for twenty to forty-five minutes. He refused to consent to a search of his trailer, and the police officers honored that. During the questioning, Keenom asked if he could reenter his trailer for ten minutes before consenting to a search. The police officers answered that he could not. The police officers did allow him to retrieve a jacket from his car. One police officer testified that had Keenom simply gone back into his trailer, the police officers would have left. During the questioning, Keenom admitted that he had a quarter of a gram of methamphetamine inside the trader. The police officers left and obtained a search warrant for the trailer, which they subsequently executed.
It is first important to acknowledge what is not at issue in this appeal. First, a violation of Miranda v. Arizona, 384 U.S. 436 (1966) is not preserved for our review, because no ruling on this issue was obtained from the trial court. Secondly, a violation of Article 2, section 15 of the Arkansas Constitution dealing with unreasonable searches and seizures is not at issue here, because the Arkansas Constitution was not sufficiently raised below and no ruling was obtained from the trial court. Indeed, there is only a passing reference to the Arkansas Constitution in Keenom’s brief before this court, and no effort was made to argue that Arkansas jurisprudence provides more rights to individuals against unreasonable searches and seizures than does the Fourth Amendment to the U.S. Constitution. See, e.g., State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002). This court, of course, cannot afford greater rights to individuals under the U.S. Constitution than those permitted under federal law. Arkansas v. Sullivan, 532 U.S. 769 (2001).
As a result, our analysis in this case is limited to the Fourth Amendment and whether a violation occurred under federal law. I conclude that it did not, because I conclude the police conduct in this case was reasonable based on what the police officers observed at Wal-Mart and based on the fact that they never conducted a search of Keenom’s trailer based on consent. Instead, they obtained a search warrant.
A major deficiency in the majority’s analysis is that it never acknowledges the trial court’s findings relating to the reasonableness of the police conduct in this case and never engages in a clearly-erroneous assessment of those findings. This, of course, is required by our caselaw. See, e.g., Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997). What follows is the trial court’s ruling on the subject:
I can tell you if this had been a case where these officers were based — basing their decision to do this on — on a confidential informer passing information the results would be different. But what distinguishes this case in the Court’s mind and — is the fact that the — this decision was based on the observations of the officer, the personal observations of the officer.
And essentially what we had here was the officer making an observation, first of all, that — that—that there were — that Mr. Keenom had in his possession at Wal-Mart some precursors to— to — to methamphetamine and nothing else. Wasn’t any groceries in there, wasn’t any household goods in there, it was just those items.
Now, those items obviously have legitimate purposes as all people know. And the fact that after these were taken out and purchased and taken out to the truck, then — then the individual returned and more items that are precursors were purchased.
So, based on those observations of the officers, then — that officer, the Court finds that there was a reasonable basis for their — his belief and the behef of the officers that methamphetamine was being manufactured that evening and that — and that they had a basis — a reasonable basis for going out and doing the so-called knock and talk. So, the motion to suppress is denied.
This court has shown a sensitivity to abuses caused by nighttime searches, which I share. See Ark. R. Crim. P. 13.2; Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991). I further am of a mind to require that consent-to-search forms be executed by the resident before a knock-and-talk can be effected, whether during the daytime or at night. See Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002) (Brown, J., concurring). But this criminal rule and our caselaw have their foundation in the Arkansas Constitution, not the Fourth Amendment. Again, the instant case is solely a Fourth Amendment case, and federal jurisprudence does not require the exigent circumstances for a nighttime search warrant set out in our Rule 13.2, much less that those exigent circumstances be required for a nighttime knock-and-talk.
Turning to the conduct of the police officers in the case at hand, I cannot disagree with the majority that the police strategy of coming out en masse to Keenom’s trailer late at night was highly questionable. But the issue for us to resolve is whether that conduct was unreasonable under the Fourth Amendment in light of what the police officers observed at Wal-Mart and in light of the fact they did not search based on consent but ultimately obtained a search warrant. I believe their conduct was reasonable under federal law.
Even if the majority is correct that Keenom was “seized” during the twenty-minute interrogation because a reasonable person would have not believed he was free to leave, see Michigan v. Chesternut, 486 U.S. 567 (1988), that does not end our analysis. The question is whether the seizure was reasonable. The majority concludes that the police officers would not let Keenom return to his trailer. Yet, that was a matter of dispute. Keenom wanted ten minutes alone inside his trailer prior to giving his consent to search. The officers refused. This was not unreasonable in my judgment. Police officers have a legitimate interest in officer safety, and there was no assurance that Keenom did not have a weapon in his trailer. New York v. Quarles, 467 U.S. 649 (1984). Moreover, there was always the risk that Keenom would destroy evidence of methamphetamine production which would render a consent to search ten minutes later meaningless. The pivotal point, however, is that Keenom never simply turned around and went back into his trailer. He was free to do so, and had he done so, Officer Noblin testified that the police officers would have left.
The majority weighs the evidence, assesses credibility, and concludes otherwise. But that is precisely what this court should not do. Credibility is for the trial court to weigh. See, e.g., Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). We defer to the trial court in resolving conflicts in testimony and only reverse when the trial court’s findings are clearly erroneous. See Burris v. State, supra.
The question of whether under federal cases, the police conduct in this case would pass muster is not really debatable. See, e.g., Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001); United States v. Jones, 239 F.3d 716 (5th Cir. 2001); United States v. Cormier, 220 F.3d 1103 (9th Cir. 2000); United States v. Johnson, 170 F.3d 708 (7th Cir. 1999); United States v. Heath, 58 F.3d 1271 (8th Cir. 1995). In addition, we recently discussed a knock-and-talk procedure where illegality under the Fourth Amendment was the issue and where trial counsel failed to preserve the state constitutional issue. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). In Scott, we affirmed the knock-and-talk procedure employed and reiterated the general balancing test that is the starting point in evaluating police-citizen encounters under the Fourth Amendment:
The approach of a citizen pursuant to a policeman’s investigative law enforcement function must be reasonable under the existent circumstances and requires a weighing of the government’s interest for the intrusion against the individual’s right to privacy and personal freedom. To be considered are the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter.
Scott, 347 Ark. at 776 (citing State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997)).
In short, the Fourth Amendment does not preclude what the police officers did in this case. No consent to search was given. The search only occurred after a search warrant was obtained. The search warrant was based on Keenom’s admission that he had a quarter of a gram of methamphetamine in his trailer, which admission resulted from his questioning by the police. Yet, the questioning was the result of the police officers’ personal observations at Wal-Mart. Viewing the proof in the light most favorable to the State, as we are required to do, that questioning lasted twenty minutes, and Keenom was not preventing from going back into the trailer and shutting his door. Had he done so, the police officers said they would have left. What the police officers did object to was Keenom’s being allowed to be in his trailer alone for ten minutes before consenting to a search.
I conclude, as did the trial court, that the police officers’ interrogation of Keenom was reasonable under the Fourth Amendment after the police officer’s observation of the methrelated purchases. I would affirm.
Dissenting Opinion on Denial of Rehearing DELIVERED SEPTEMBER 5, 2002