# State v. Brown

State v. Brown, 356 Ark. 460 (2004), concerns the w:Knock and talk. In this case the Arkansas Supreme Court held that police officers must inform residents that they have the right to refuse to give consent to search their home. 356 Ark. at 474. Otherwise their consent is invalid under article 2, section 15 of the state constitution. Id. Before this case, Arkansas followed the federal rule: knowledge of the right to refuse to give consent is just one fact to be considered when deciding whether the consent was voluntary. King v. State, 262 Ark. 342 (1977) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973)), overruled by State v. Brown, 356 Ark. at 473. Glaze, J., strenuously dissented from the supreme court's decision.
Supreme Court of Arkansas
356 Ark. 460
State of Arkansas v. Jaye M. BROWN and Michael C. Williams
Appeal from Pope Circuit Court
No. CR 03-914. --- Delivered: March 25, 2004. Rehearing denied: May 6, 2004.
* Court Documents
* Opinion of the Court
* Dissenting Opinion Glaze
* COURTS—APPELLATE JURISDICTION—MATTER CONCERNING CORRECT & UNIFORM ADMINISTRATION OF CRIMINAL LAW.—Because the appeal raised a significant search-and-seizure issue involving the procedure known as "knock and talk," it was a matter that concerned the correct and uniform administration of the criminal law and that required review by the supreme court [Ark. R. App. P.—Crim. 3(c)]; the supreme court had jurisdiction to review the matter.
* SEARCH & SEIZURE—WARRANTLESS ENTRY INTO PRIVATE HOME—HOW PRESUMPTION OF UNREASONABLENESS OVERCOME.—A warrantless entry into a private home is presumptively unreasonable under the Fourth Amendment; however, the presumption of unreasonableness may be overcome if the law-enforcement officer obtained the consent of the homeowner to conduct a warrantless search.
* SEARCH & SEIZURE—CONSENT—VOLUNTARINESS.—The State has a heavy burden to prove by clear and positive testimony that a consent to search was freely and voluntarily given; a valid consent to search must be voluntary; voluntariness is a question of fact to be determined from all the circumstances.
* SEARCH & SEIZURE—CONSENT—MUST BE UNEQUIVOCAL.—Any consent to search given must be unequivocal and may not usually be implied; the State must prove by clear and positive testimony that the consent to enter and search was unequivocal and specific.
* SEARCH & SEIZURE—"KNOCK-&-TALK"—NOT PER SE VIOLATIVE OF FOURTH AMENDMENT.—The "knock-and-talk" procedure is not per se violative of the Fourth Amendment to the United States Constitution; the Fourth Amendment does not require knowledge of the right to refuse consent as a prerequisite to a showing of voluntary consent. ​
* SEARCH & SEIZURE—FOURTH AMENDMENT—ARKANSAS SUPREME COURT NOT BOUND BY FEDERAL INTERPRETATION OF FOURTH AMENDMENT WHEN INTERPRETING ARKANSAS LAW.—Although the search-and-seizure language of Article 2, § 15, of the Arkansas Constitution is very similar to the words of the Fourth Amendment, the Arkansas Supreme Court is not bound by the federal interpretation of the Fourth Amendment when interpreting Arkansas law; while the supreme court lacks authority to extend the protections of the Fourth Amendment beyond the holdings of the United States Supreme Court, it does have the authority to impose greater restrictions on police activities in Arkansas based upon state law than those the United States Supreme Court holds to be necessary based upon federal constitutional standards.
* SEARCH & SEIZURE—PRIVACY IN HOMES AT NIGHTTIME—RIGHT OF VAST IMPORTANCE.—The privacy of citizens in their homes, secure from nighttime intrusions, is a right of vast importance as attested not only by the Arkansas Rules of Criminal Procedure, but also by the state and federal constitutions.
* SEARCH & SEIZURE—PERSON'S HOME AS ZONE OF PRIVACY—SACROSANCT RIGHT.—The right to privacy implicit in the Arkansas Constitution is a fundamental right that requires a compelling state interest to override it; the legal principle that a person's home is a zone of privacy is as sacrosanct as any right or principle under the state constitution and case law; Arkansas has clearly embraced a heightened privacy protection for citizens in their homes against unreasonable searches and seizures, as evidenced by the constitution, state statutes, common law, and criminal rules.
* SEARCH & SEIZURE CONSENT—KING V. STATE OVERRULED.—The supreme court departed from its holding in King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977), which had adopted the standard set forth in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), when interpreting Ark. Const. art. 2, § 15; the case was overruled to the extent that it stands for the proposition that a homeowner need not be apprised of his or her right to refuse a consent to search as a prerequisite to a valid consent to search that home.
* COURTS—PRECEDENT—WHEN BREAK WARRANTED.—Although as a general rule the supreme court is bound to follow precedent, it will break with precedent when the result is patently wrong and so manifestly unjust that a break becomes unavoidable. ​
* SEARCH & SEIZURE—PUBLIC POLICY IN FAVOR OF PRIVACY IN ONE'S HOME—WARRANTED OVERRULING OF KING V. STATE.—The supreme court concluded that Arkansas's strong public policy in favor of privacy in one's home warranted the opinion in the case at issue and the overruling of King v. State.
* SEARCH & SEIZURE—FAILURE OF AGENTS TO ADVISE APPELLEE THAT SHE HAD RIGHT TO REFUSE CONSENT VIOLATED RIGHT AGAINST WARRANTLESS INTRUSIONS—SUPPRESSION OF EVIDENCE AFFIRMED.—The supreme court held that the failure of Drug Task Force agents to advise appellee Brown that she had the right to refuse consent to the search violated her right and the right of appellee Williams against warrantless intrusions into the home, as guaranteed by Article 2, § 15, of the Arkansas Constitution; the supreme court affirmed the suppression of all evidence seized that flowed from this unconstitutional search; while the court did not hold that the Arkansas Constitution required execution of a written consent form containing a statement that the home dweller has the right to refuse consent, the court noted that this undoubtedly would be the better practice for law enforcement to follow.
Appeal from Pope Circuit Court; John S. Patterson, Judge; affirmed.
Mike Beebe, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., for appellant.
Dale W. Finley, for appellee.
[Opinion of the court by Justice ROBERT L. BROWN. Dissenting opinion by Justice TOM GLAZE, joined by Chief Justice BETTY DICKEY and Justice ANNABELLE CLINTON IMBER.]
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