Justice, concurring. I concur in the judgment but write separately because I disagree with the majority’s conclusion that the trial court erred when it did not suppress the statement Martin gave to Little Rock Police Detectives Steve Moore and Ronnie Smith at the initial interview.
It is clear that following the murder, the police investigation began with attempts to interview Thelma Artis’s sons based on information that a man identifying himself as her son was seen knocking on her door the previous night. Detective Moore testified that he interviewed one of the sons, Tony Bell, at Bell’s house during the day of April 23, 1994, and determined that he had an alibi. Donald Ray Lewis, another of the sons, was questioned when he arrived at his mother’s apartment, and was again questioned on April 25, 1994, by Detective Mike Durham at the Little Rock Police Department. Two other sons, one who was then in Japan, and the Reverend Billy Artis of Pine Bluff, were quickly ruled out as possible suspects.
During the day of April 23, 1994, Detective Moore set out to interview Martin and discovered that he was not home. The detective asked Martin’s wife to call when Martin arrived, and at approximately 10:00 or 10:15 p.m. that night, Detective Moore received a call from Mrs. Martin informing him that Martin was home. At approximately 10:30 p.m., Detectives Moore and Smith, along with Sergeant Clyde Steelman and Detective Armstrong, arrived at Martin’s house. Detective Moore testified that Martin voluntarily accompanied them in response to their request for questioning. Martin sat in the back seat of Detective Moore’s car without handcuffs. He was not questioned in an interrogation room, but in a sergeant’s office about his whereabouts on the previous night. At the close of the statement, Martin acknowledged that he had agreed to accompany the police officers to the police station and executed a waiver of rights form. However, Martin refused to give an additional statement, and he was transported home by members of the police department.
Martin was not arrested that night. In fact, a warrant for his arrest was not issued until five days later — April 28, 1994 —■ and only after it was found that one of his fingerprints was on the Coke can discovered in the victim’s trash. Although Detective Smith admitted that Martin matched a known physical description of the man seen knocking on Ms. Artis’s door, both Detectives Moore and Smith explained that Martin was treated only as a potential fact witness when he arrived at the station for the first interview. According to both detectives, it was only after Martin gave his implausible statement at that interview that he became a suspect in his mother’s murder.
In light of these facts, the majority concludes that Martin’s statement should have been suppressed for the sole reason that Detectives Moore and Smith violated Rule 2.3 of the Arkansas Rules of Criminal Procedure when they did not expressly inform him that he had no legal obligation to accompany them to the police station for questioning. Because I question the propriety and necessity of mandating a verbal statement to this effect by police officers under Rule 2.3, I believe that an examination of our precedent is in order.
Rule 2.3 was adopted by this court by per curiam order in 1975. See In re The Arkansas Criminal Code Revision Comm’n, 259 Ark. 863, 530 S.W.2d 672 (1975). It reads:
If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.
This court’s decisions over the past ten years stand for the proposition that a person in Martin’s position must, at some time, be verbally warned that he has the right to leave at any time. See, e.g., Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996); Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996); Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993); Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989); Kiefer v. State, 291 Ark. 464, 762 S.W.2d 800 (1989); Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). It is also clear that, under this line of cases, a failure to comply with Rule 2.3 mandates suppression of the statement unless there existed probable cause to seize the declarant. Hart v. State, supra; Addison v. State, supra; Kiefer v. State, supra; Burks v. State; supra.
The Rule 2.3 analysis currently employed by this court has its roots in the decision of Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985). In Foster, police officers approached the defendant’s residence at 2:30 a.m. and represented to her that the prosecutor wanted to speak with her at his office. The police officers took her to the prosecutor’s office, obtained a waiver of her Miranda rights, and questioned her, with minimal assistance from the prosecutor, about her involvement in a contract killing. This court determined that she was illegally arrested because the police officers misused the prosecutor’s authority to summon people for questioning. In discussing its determination that the defendant did not voluntarily submit to the questioning, this court discussed Rule 2.3:
Rule 2.3 provides that if, pursuant to this rule, the officer asks any person to come or remain at a prosecuting attorney’s office, the officer shall take steps to make clear that there is no legal obligation to comply with the request. To the contrary, no steps were taken here. In fact, one of the officers agreed during his testimony that Mrs. Foster did not volunteer for questioning but only went to the prosecutor’s office “because four officers came to her house and picked her up and carried her down there.” The fact that Mrs. Foster accompanied the officers without being arrested or forced to comply does not demonstrate acquiescence. “[CJonsent to an invasion of privacy must be proved by clear and positive testimony — a burden that is not met by showing only acquiescence to a claim of lawful authority.” Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980). Such acquiescence is all the state has been able to demonstrate here.
Foster v. State, 285 Ark. at 367, 687 S.W.2d at 830 (emphasis added). On these facts, this court determined that, under the totality of the circumstances, the defendant’s confession was tainted by the illegal arrest.
From Foster, this court molded the requirement that police officers must actually state to persons that they have no legal obligation to comply with a request for questioning. In Burks v. State, supra, this court, citing Foster v. State, supra, determined Rule 2.3 created the “positive duty” to inform appellant that he was free to leave the Little Rock Police Department, and that the failure to do so indicated a lack of proof that appellant had consented to the interrogation. As such, the interrogation was deemed custodial and a seizure of appellant that required probable cause.
To the same effect is Kiefer v. State, supra, in which appellant, accompanied by his wife, reported to the police station for questioning as the result of a telephoned request by Hoxie Police Chief Paul Hendrix. After waiving his rights, appellant gave a statement incriminating himself on charges of rape and incest. However, because Chief Hendrix did not specifically state to appellant that he was not required to come to the office, this court determined that under Foster v. State, supra, and Burks v. State, supra, his statement was to be suppressed absent a finding of probable cause.
From these cases, it is apparent that (1) expressly stating that a person is not obligated to accompany members of law enforcement is the only possible method of satisfying Rule 2.3; and (2) compliance with Rule 2.3 is the only mechanism whereby it can be proven that a person who was taken to a police station for questioning was not illegally arrested.
Our cases interpreting Rule 2.3 go much further than what is required by the United States Supreme Court. In United States v. Mendenhall, 446 U.S. 544 (1980), the Court established the relevant test for determining whether a person has been “seized” for purposes of the Fourth Amendment:
We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of such circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.
Id. at 554-55 (internal citations omitted). In forming this analysis, the Court noted explicitly that the question of whether a seizure occurs is not dependent upon whether a person is told that they are free to decline to cooperate because the voluntariness of the response is not dependent upon having been so informed. Id. at 555, citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
A number of jurisdictions have had occasion to apply the dictates of Mendenhall to facts analogous to those presented by the instant case. For example, in State v. Hunt, 555 A.2d 369 (Vt. 1988), the Supreme Court of Vermont rendered a decision that is particularly apposite to this case. In Hunt, police officers were investigating a murder case and asked the defendant if he would mind coming to the police station to answer some “routine questions.” Although the police officers testified that they intended to take statements from a number of people, the defendant was the first person questioned because of his “unnatural curiosity at the crime scene . . . [and] his presence in the building at the time of the murder.” Id. The defendant accompanied the officers to the police station, waived his Miranda rights, and eventually gave a confession to the murder. On appeal, the defendant argued that his confession should have been suppressed because he was illegally seized when, without probable cause, the police asked him to come to the police station without informing him that he had no legal obligation to accompany them. The argument was made under the Vermont Constitution, because the defendant conceded that, under the United States Constitution, “it is clear that the failure to inform a defendant that he or she could withhold consent to accompany the police is not sufficient to establish the existence of illegal coercion.” Id. at 376, citing United States v. Watson, 423 U.S. 411 (1976); Schneckloth v. Bustamonte, supra.
The defendant also argued that, under the totality of the circumstances, he was unlawfully seized because his compliance with the police request was involuntary. The Vermont Supreme Court quickly dismissed this argument:
On the facts of this case we conclude that no seizure of defendant occurred when he voluntarily accompanied the police to the station for questioning. Defendant was not seized simply by the fact that the officers asked him to join them for questioning. See Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1877. In addition, “the fact that [defendant] was not expressly told by the [officers] that [he] was free to decline to cooperate with their inquiry" does not turn the approach into a seizure since “the voluntariness of [his] response does not depend upon [his] having been so informed.” Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1878. We find no evidence of express or implied duress or coercion, and neither threats nor show of force. Defendant was simply asked if he would mind accompanying the police to the station for routine questions, and he agreed.
Id. at 377-78 (emphasis added).
Absent the circumstances of coercion discussed in United States v. Mendenhall, supra, appellate courts are uniform in determining that a person has not been “seized” for purposes of the Fourth Amendment when he voluntarily submits to a request for police questioning. See, e.g., People v. Torres, 669 N.E.2d 1279 (Ill. App. 3 Dist. 1996)(“[W]here a defendant is simply asked to accompany officers without threats or show of force there is no impermissible seizure of the individual.”), quoting People v. Patton, 412 N.E.2d 1097, 1100 (Ill. App. 3 Dist. 1980); State v. Osborn, 547 N.W.2d 139, 145 (Neb. 1996)(“It has been determined that one who voluntarily accompanies the police for questioning has 'not been seized.”), quoting State v. LaChappell, 382 N.W.2d 343, 347 (Neb. 1986); State v. Johnson, 346 S.E.2d 596 (1986)(fmding no seizure when the defendant accompanied officers to the police station per their request for questioning regarding a homicide investigation); Dancy v. State, 728 S.W.2d 772 (Tex. Cr. App. 1987)(fmding no seizure when two officers went to appellant’s home and asked that he accompany them to the police station); DeLeon v. State, 894 P.2d 608 (Wyo. 1995)(finding no seizure when there was no evidence in the record that the defendant was coerced into accompanying the detectives to the police station).
Particularly appropriate is the analysis utilized in Dancy v. State, supra, in which the question of “seizure” was analogized to “custody” for purposes of the Fifth Amendment. The Texas Court of Criminal Appeals stated:
If the circumstances show that the transportee is acting only upon the invitation, request, or even urging of the police, and there are no threats, express or implied, that he will be taken forcibly, the accompaniment is voluntary, and such person is not then in custody. In other words, under those circumstances, such person has not been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, supra.
Dancy v. State, 728 S.W.2d at 778.
From the foregoing, it is clear that the United States Constitution requires only that this court look to the totality of the circumstances to determine whether a “reasonable person” would have believed that he was free to decline a police officer’s request for questioning. It is also certain that compliance with a law enforcement officer’s request may be deemed voluntary absent being informed that there is no obligation to comply with the request. United States v. Mendenhall, supra. See, e.g., State v. Hunt, supra.
Yet, our precedent interpreting Rule 2.3 mandates a “positive duty” on the part of law enforcement to verbalize that the person need not comply with the police request. Because of this position, I must assert two points. First, the plain language of Rule 2.3 does not require a verbal warning in every case. Rather, the rule requires only that an officer “take such steps as are reasonable to make it clear that there is no legal obligation to comply with such a request.” In my judgment, compliance with Rule 2.3 should be considered, consistent with Supreme Court precedent, by reviewing the totality of the circumstances surrounding the request.
Second, it must be noted that Rule 2.3, which was made effective in 1976 by per curiam order, was taken from the American Law Institute’s Model Code of Pre-Arraignment Procedure. See American Law Institute, Model Code of Pre-Arraignment Procedure § 110.1(3) (Prop. Off. Draft 1975). It is apparent that we are the only jurisdiction to have adopted the ALI Model Code provision either by way of statute or rule of criminal procedure. To the extent this court has interpreted Rule 2.3 to require a verbal warning in order to prove consent to a request for interrogation, it has done so based on a provision that was written prior to the Supreme Court’s decision of United States v. Mendenhall, supra. Such an interpretation offers protection far greater than is required by the U.S. Constitution, and it is apparent that we may be a minority of one by having done so.
Under the facts of this case, the totality of the circumstances reflects that Martin, of his own free will, accompanied members of the Little Rock Police Department to the station for interrogation. Although four officers arrived at Martin’s house at 10:30 p.m., it is clear that (1) Martin knew they were coming; (2) the officers did not touch or physically restrain Martin in any way; (3) Detectives Moore and Smith questioned Martin in a sergeant’s office rather than an interrogation room; and (4) the detectives allowed Martin to leave, without comment, when he desired to do so. These facts make clear that Martin’s rights under the Fourth Amendment were not violated, and his statement should not have been suppressed as the fruit of an illegal arrest. It is also obvious that the failure to obtain a waiver of his Miranda rights prior to the interrogation did not violate Martin’s rights under the Fifth Amendment because he was not a suspect at that time. Clearly, under the totality of the circumstances, Martin’s freedom of action was not curtailed to a degree associated with formal arrest. See State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995).
In sum, this court’s interpretation of Rule 2.3 places a “positive duty” on law enforcement officers far beyond what is required by the United States Constitution and embraces our exclusionary aspect that only has the effect of “restrict[ing] the investigatory function of the police.” Dancy v. State, 728 S.W.2d at 778, quoting People v. Wipfler, 368 N.E.2d 870, 873 (Ill. 1977). Based on the foregoing, I submit that our adherence to this precedent should be reconsidered.
I would affirm on the basis that under the totality of the circumstances Rule 2.3 was not violated.
Glaze and Thornton, JJ., join.