Carson v. State

Jim Gunter, Justice,

dissenting. I respectfully dissent. In his sole point on appeal, Carson argues that the trial court should have suppressed the evidence seized as a result of what Carson contends was an illegal search. The majority agrees and reverses Carson’s conviction because Officer Dawson did not specifically inform Carson that he had the right to refuse to consent to a search of his home.

The majority relies upon our decision in State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004), in which we held that Article 2, § 15 of the Arkansas Constitution requires officers who use the knock-and-talk procedure to inform the home dweller that he or she has the right to refuse to consent to the search. This holding is now reflected in Ark. R. Crim. P. 11.1, which was amended in November, 2004. In Brown, we noted that it was 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.” Id. at 466. Relying on Arkansas’s “heightened privacy protection for citizens in their homes against unreasonable searches and seizures,” id. at 469, the court concluded that a warrantless search, conducted in the absence of a warning to the resident of his or her right to refuse consent, violated the Arkansas Constitution. Id. at 475.

The facts in this case are distinguishable from those in Brown, supra. While there were three uniformed officers present in Brown, the only officer present in this case was Officer Dawson, and he was not in a uniform, but in jeans and a t-shirt. Moreover, the search in this case was not conducted after Dawson asked consent to search, but after a conversation between Dawson and Carson on the porch during which Carson broke down crying and offered to show Dawson the meth lab inside the house. Additionally, the circumstances in Brown involved a level of coercion that was not present in the present case. There were three agents in Brown who told Brown they had reason to believe that there was illegal drug use, and that all three officers were going to search the premises. Here, Officer Dawson, wearing jeans and a t-shirt, went to Carson’s front door, and Dawson was alone when he asked to speak to Carson. Unlike the situation in Brown, Carson exercised his right to refuse consent when, on his own volition, he stepped out onto the front porch and denied the officer permission to enter his home. Having initially refused consent, however, Carson very shortly thereafter granted Dawson permission to enter the home without Dawson’s ever asking again if he could enter.

This court has said that the knock-and-talk procedure has been upheld as a consensual encounter and a valid means to request consent to search a house. Latta v. State, 350 Ark. 488, 88 S.W.3d 833 (2002). In Latta, we held that the police officers’ actions of going to appellant’s house based upon an anonymous tip that he was manufacturing methamphetamine did not violate his Fourth Amendment rights. Id. We should similarly hold in this case. Officer Dawson’s actions do not violate what we have defined as the knock-and-talk procedure:

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 honest intent of asking questions of the occupant thereof whether the questioner be a pollster, a salesman, or an officer of the law.

Keenom v. State, 349 Ark. 381, 387, 80 S.W.3d 743, 746 (2002) (citing Griffin, supra)).

Here, there was no overbearing police conduct, no entry, no disparity in numbers of officers, and no conduct that is offensive to the average person. The factor relied on by the majority is that the officer did not tell the meth maker, as he was inviting the officer to “see everything,” that he did not need to consent. Rule 11.1 does not purport to cover a person who chooses to come out of his home to talk with a lone police officer and who, on his own volition, volunteers information that he has methamphetamine or other illegal drugs inside. Clearly, Carson’s admission at this stage of the inquiry gave the officer probable cause to enter the suspect’s meth lab. Any warning after his confession would be of little value to Carson.

The majority stands on Brown and on Rule 11.1. Neither should cause the court to ignore reason. No one can write a rule to cover every possible situation. And surely neither Rule 11.1 nor Brown were written to protect a confessed, meth-lab owner-operator who invited a lone police officer inside his home to see his operation. Surely this court’s duty to the law-abiding citizens of Arkansas cannot be justified on such a basis. If the reason for Brown and Rule 11.1 were such, then both should be abandoned.

For these reasons, I respectfully dissent. I am authorized to state that Justice Corbin and Justice Dickey join in this dissent.