Opinion
CACR05-1169
Opinion Delivered October 11, 2006
Appeal from the Garland County Circuit Court; [CR-04-609-1]; Hon. John H. Wright, Circuit Judge.
LARRY D. VAUGHT, Judge.
CONCURRING OPINION
In this case, the majority advocates reversal based on our supreme court's holding in Brown v. State, which mandates that an officer inform a suspect of his right to refuse consent when executing a "knock and talk." 356 Ark. 460, 156 S.W.3d 722 (2004). The majority's analysis rests on a conclusion that "the situation falls into the category of a `knock and talk' case because the officers were `searching' for individuals for whom they had arrest warrants." However, I am not convinced that the facts support such a definitive conclusion. Indeed, based on my reading of Carson v. State, ___ Ark. ___, ___ S.W.3d ___ (July 1, 2005), which was not mentioned in the majority opinion, it is apparent that the applicability of Brown in cases involving "spontaneous" invitation requires close factual analysis.
In Carson, our supreme court considered a scenario where a lone, plain-clothed officer approached the home of David Carson in order to execute a "knock and talk" after receiving a tip that Carson had just purchased "strong iodine tincture, an item used in the manufacture of methamphetamine." Id. at ___, ___ S.W.3d. at ___. Once at the suspect's home, the officer went to the door and knocked. When Carson came to the door, the officer displayed his badge and asked if he could "step inside to speak." Carson claimed to be too busy to let the officer in, but agreed to visit on the front porch. The officer testified that he found it strange that Carson had time to visit on the porch but not inside his residence. The officer also noticed that Carson was sweating, had trouble making eye contact, and was shaking. The officer then pointed out his suspicions to Carson — commenting on Carson's erratic behavior, the recent iodine purchase, the strong chemical odor in the air, and the stains on Carson's hands. Eventually, Carson broke down, began to cry, and admitted that he did have a lab inside and would show the officer where everything was. The officer, accepting Carson's invitation, entered the home and observed several items in plain view, which were sufficiently suspicious to support a search warrant.
In a four-to-three decision, our supreme court reversed the trial court's denial of Carson's motion to suppress. The court reiterated the "bright-line rule" it declared in Brown, stating "when an officer does not inform a suspect of his or her right to refuse consent, any subsequent search — even one based on the suspect's apparent consent — is invalid." Id. at ___, ___ S.W.3d. at ___. Although Carson could broadly be categorized as a spontaneous-consent case, in my view, it does not completely resolve the question presented on appeal. My paramount concern is the fact that, unlike the situation presented in Carson, officers here did not first execute a "knock and talk" where entry was denied before finally gaining "voluntary consent" to enter the home. Indeed, Ms. Ashmore invited officer Story to enter her home in response to his innocuous inquiry for proof of Ashmore's identity. Further, unlike the situation presented in Carson, the record does not clearly establish that Ms. Ashmore was a "suspect" or that she was the target of the officer's interest whatsoever.
However, this is not to say that I disagree with the majority's conclusion. Here we have numerous armed officers surrounding a residence and one officer knocking on the door. Therefore, at the very least there was a "knock," and it does not take an enormous legal leap to conclude that the officer's request for identification was the "talk," thereby triggering the need for a disclaimer prior to the officers' entry into the home. However, based on the prevailing case law, it is a leap nonetheless, that has not been specifically addressed by our supreme court. If there is to be a bright-line rule that before an officer enters an individual's home, regardless of how or why he enters, I believe it is for the supreme court to so state. Therefore, I write separately.
As I see it, this case presents two distinct paths for our court to travel, both with particular problems. The problems with the majority's course I have already stated. However, I do not believe that a conclusion that this was not a "knock and talk" because Ms. Ashmore issued an invitation for officers to enter after they "knocked" but before they requested permission is a satisfactory resolution. This is because such a course would also require us to thread a needle of legitimacy that seems innately counter to our state's decision to embrace "a heightened privacy protection for citizens in their homes against unreasonable searches and seizures, as evidenced by our constitution, state statutes, common law, and criminal rules." Brown, 356 Ark. at 470, 156 S.W.3d at 729.
Indeed, to affirm under this theory we must also conclude that Ms. Ashmore's invitation to enter — after Story (the sole, uniformed officer) requested to see her identification — extended to both officers Chapmond and Story. In order to do so, we would have to ignore the following testimony of officer Chapmond:
A: Once she opened the door for Lieutenant Story, they identified each other.
Q: First, how wide did she open the door when she first opened the door?
A: I was to the side, but I do know that they were able to see each other.
Q: Okay.
A. Once they identified each other, she stated her name was Ms. Ashmore. Lieutenant Story asked if she had an I.D., she said, "Yes, I do. Come in. I'll go get the I.D." At the point, that's when we entered behind her. Like I said, she invited us in.
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Q: Okay. So, you and Lieutenant Story, and Stringer, and the other three (3) Arkadelphia Police Officers all went into the living room because Ms. Ashmore told Lieutenant Story, "Come in. I'll get my I.D."?
A: That is correct.
Q: Did it take six (6) of you to see her I.D.?
A: No. It did not.
We would also have to ignore Story's testimony that he knocked on the door and Ms. Ashmore opened the door "just enough" so that he "could see her physical appearance and see her." And that after he made it clear that he was a police officer, he "asked her if she had some identification, and she said yes. She opened the door completely and said, `Come in, I'll get it out of my purse.'" He described what happened next
As I entered the living room, she — I was behind her — she moved to her right and I moved to my — behind her, watching her. She was going into her purse to get her identification, so my eyes were focused on what she was doing and I kept — that was my attention.
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I was watching her as to what her actions were. I took her identification and ran it through A.C.I.C./N.C.I.C. and it showed that there was a warrant out. . . . I had her come out — she sat there on the couch for a minute and then we went outside. She made conversation.
Further, and most importantly, the trial court's letter opinion plainly states that "the officer's entry into the residence was by spontaneous invitation." (Emphasis added.) To me, the trial court's use of the singular "officer," and not the plural "officers" is important. See Baird v. State, 357 Ark. 508, 182 S.W.3d 136 (2004) (requiring deference to the trial court when weighing and resolving facts and circumstances). It seems logical that when officer Story asked Ms. Ashmore to produce her identification and she responded, "Come in, I'll get it out of my purse," she was inviting only officer Story into the home. Officer Chapmond's testimony, officer Story's testimony and, the trial court's letter opinion support this conclusion.
The resolution of this factual discrepancy is important to the ultimate outcome of this case because officer Story, by his own testimony, neither observed contraband in plain view nor participated in the actual search of the house. He retrieved Ms. Ashmore's identification and "did not do anything else in relation to the house." It was officer Chapmond who noticed a strong odor, observed suspicious items in the kitchen, and heard "a noise" in the back of the house that prompted him to enlist as many as six other officers to assist him in a full-blown "safety" search of the home whereby they discovered a naked woman bathing and a methamphetamine lab. To me, six armed officers entering the home — under the authority of Ms. Ashmore's narrow and limited invitation that she extended to officer Story — then fanning out and searching the residence for their "safety" is quintessential "overbearing police conduct" and is certainly "offensive to the average person." See Carson, ___ Ark. at ___, ___ S.W.3d at ___ (Gunter, J., dissenting).
Therefore, I cannot vote to affirm this case. Instead, I return to the oft-repeated rule that a warrantless entry into a private home is per se unreasonable. Welsh v. Wisconsin, 466 U.S. 740 (1984). As such, I believe that the "spontaneous invitation" that Ms. Ashmore issued was very limited in scope and purpose and that the officers' warrantless search exceeded the boundaries of both. Rule 11.3 of the Arkansas Rules of Criminal Procedure provides that a "search based on consent shall not exceed, in duration or physical scope, the limits of the consent given." Therefore, I am satisfied by clear and positive evidence that the scope of the consent to search, if any, given by Ms. Ashmore was for officer Story to accompany her to her purse so that she could retrieve her identification. She did not invite the other officers to enter the home or to go beyond the retrieval of the purse. See Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999) (relying on "scope of search" concept as a basis for reversal).