dissenting. I respectfully disagree with the majority’s conclusion that the trial court’s denial of appellant’s suppression motion must be reversed, and I would affirm the appellant’s conviction.
Appellant filed a pre-trial motion to suppress evidence that was discovered at his residence by officers of the Hot Springs and Arkadelphia Police Departments on September 9, 2004. Appellant alleged in his motion that the items seized by the police officers were discovered after the officers entered appellant’s residence without consent. After hearing the testimony of three officers who testified on behalf of the State, and two witnesses who testified for the appellant, the trial court specifically found “that the officer’s entry into the residence was by spontaneous invitation and not in response to request for consent, so that the provisions of State v. Brown do not apply.” I agree with the trial court that State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004), does not apply.
In Brown drug-task-force agents knocked on the door of the residence, Brown answered the door, an agent told her that their purpose was to investigate information about illegal drug activity at the residence, she was asked to sign a consent-to-search form, and she signed it. The agents then entered Brown’s residence where they discovered evidence of methamphetamine use and evidence of precursors used to manufacture methamphetamine. The discovery of these items lead to the issuance of a search warrant and, eventually, to the discovery of evidence of the manufacture and use of methamphetamine and marijuana. The supreme court held that the drug-task-force agents’ initial search of Brown’s residence was illegal because Brown had not been informed by the officers that she had the right to refuse to give her consent to the search. The supreme court said, “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.” Brown, 356 Ark. at 466, 156 S.W.3d at 726 (emphasis added).
In the present case Lt. Allen Story testified at the suppression hearing that he was a Hot Springs police officer assisting Arkadel-phia officers in serving an arrest warrant on a burglary suspect. Story testified that he went to Burroughs’s residence with other officers, that he knocked on the door, and that a female opened it enough that he could see what she looked like. Story testified that he told the female that the officers had a warrant for the arrest of some individuals, that the female identified herself as Alice Ash-more, and that he asked her for identification. Story testified that Ashmore then stated, “Come in, I’ll get it out of my purse,” and that he and another Hot Springs police detective, Chris Chap-mond, entered the residence, along with other officers. On cross-examination, Story said that the words Ashmore used were, “Come in, I’ll get my I.D.”
Detective Chapmond’s testimony was substantially the same as Lt. Story’s, reiterating that when Story asked Ashmore if she had any identification, she responded with an invitation for them to “come in and she would get the I.D.” Chapmond also recounted that he, Story, a Detective Stringer, and three Arkadelphia officers entered the residence in response to Ashmore’s invitation.
Alice Ashmore testified as a witness at the suppression hearing, stating in relevant part that when she opened the door, a uniformed officer told her that they were looking for a girl with purple hair and she responded that there was no girl there with purple hair. She said that the officer asked her if they could come in and look around to see if she was telling the truth, and that she responded that they could look around in the living room and kitchen. Ashmore testified that the officer did not inform her that she had the right to refuse to let them enter and that they did not ask her to sign a consent-to-search form.
In my view, Brown stands for the proposition that when a police officer requests consent to enter a residence, that request must be accompanied by the officer’s notice that the request for consent to enter may be refused; otherwise the entry is noncon-sensual. Nothing in Brown precludes an officer from accepting an unsolicited invitation to enter a residence.
Whether the officers’ entry into Burroughs’s residence was a result of a spontaneous invitation, as testified to by Lt. Story and Det. Chapmond, or in response to a request for consent, as testified to by Ms. Ashmore, was a matter of credibility to be determined by the trial court, which we are not at liberty to disturb on appeal. See Gonder v. State, 95 Ark. App. 144, 234 S.W.3d 887 (2006) (rejecting appellant’s argument that he and his wife were bullied and that he consented to a search because he was threatened with incarceration and the children’s removal from their home). I would hold that the trial court’s finding of a spontaneous invitation takes this case outside the purview of Brown. Unlike in Brown, where officers went to the residence with the purpose of investigating illegal drug activity, the search in the present case evolved after officers had accepted an invitation from Ashmore to enter appellant’s residence.
The majority’s difficulty in understanding how Ashmore’s invitation to the officers distinguishes this case from Brown arises from a misreading of Brown. Brown does not require that notice of the right to refuse consent be given unless the officers request consent to search. It is illogical to require an officer to inform a person of the right to refuse consent to enter a residence when no such consent has been requested by the officer. I read nothing, either in Brown or in Rule 10.1 of the Arkansas Rules of Criminal Procedure, that prohibits an officer from accepting an invitation to enter a residence when the officer has made no request to enter.
I certainly agree with the concurring judge that the majority’s position is a “leap” from our supreme court’s decision in Brown. I do not agree with the concurring judge that the issue presented by this case can be resolved based on the trial judge’s placement of an apostrophe in the word “officers” in his letter opinion. From my reading of the testimony, it is clear that while Lt. Story was apparently the only uniformed officer on the scene and that Lt. Story was the one who knocked on the door of Burroughs’s residence, it is equally as clear that Detective Chap-mond accompanied Story at the door. It is obvious from Ms. Ashmore’s testimony alone that she was aware of the presence of more than one officer outside the door:
I went to the door and they said they were the police. I opened the door about a hand length and they told me they were looking for a girl with purple hair. They told me to put up the dog before I opened the door.
I opened the door about eight inches wide, and could see two officers. There was one in uniform, and I talked with him. I told them there was no girl with purple hair there. They did not mention anything about burglary suspects or tell me they had a warrant for anyone.
They asked if they could come in and look around.... I told them they could look right there in the living room and kitchen.
(Emphasis added.)
From these limited excerpts from Ms. Ashmore’s testimony, it is obvious that she knew that Lt. Story was not the only law enforcement at the door and that she invited them into the house to look in the living room and kitchen. Considering that this testimony clearly establishes that two police officers were in Ashmore’s view outside the door, and considering that Ms. Ashmore obviously considered that she was speaking to both of them, it is hard for me to imagine that the trial court, by its use of the singular possessive “officer’s” in describing who was spontaneously invited by Ashmore to enter Burroughs’s residence, intended to say that the invitation was extended only to Story but not to Chapmond. With all due respect to the trial judge, I cannot agree that this case should be decided on the strength of his understanding of the significance of the location of an apostrophe.
Deferring to the trial judge to resolve conflicts in testimony, I would conclude that Ashmore spontaneously invited the officers inside the house in response to a request that she produce identification. Because the officers did not request Ashmore’s consent to enter the residence, they were not required to inform her that she had a right to refuse to consent when she invited them in. Therefore, I would uphold the trial court’s denial of Burroughs’s motion to suppress the evidence that was discovered as a result of police entry into the home.
I am authorized to say that Judge Crabtree joins with me in this dissent.