Page:State v. Brown.pdf/19

478 In light of this court's longstanding adherence to the general rule on consensual searches set out in the foregoing Arkansas and federal cases, the question to be asked is, why has this court precipitously decided to adopt a new rule in Arkansas regarding consensual searches? The majority opinion offers no convincing reason why this court should jettison well-settled Arkansas case law and its own Rule 11.1 on consensual search and seizure. Instead, the majority court, without a compelling reason, substitutes a ''new interpretation of Ark. Const. art. 2, § 15, and now, for the first time, requires a resident to be advised of his or her right to refuse consent'' before a consensual search can be valid.

The majority opinion merely provides that, after today, it will no longer look to the Fourth Amendment to protect Arkansas citizens regarding consensual searches. Instead, the majority claims it wishes to grant greater protection to Arkansas residents by applying the Arkansas Constitution and giving a new interpretation to article 2, § 15, which is the same thread-bare argument put before this court and rejected in the King case in 1977. In other words, even if the resident/suspect voluntarily gives a consent to search, the search will be invalid unless the officers says the magic words, "You have the right to refuse to consent to this search."

The majority court offers no evidence that the Fourth Amendment has failed to protect Arkansas residents from illegal searches. Nor does the majority court show that Arkansas law enforcement officers are abusing or misusing searches performed under the Fourth Amendment analysis, which Arkansas courts have recognized and applied over past decades. If there are such abuses by Arkansas law enforcement officers, this court should reveal them.

To my knowledge, our courts have applied the Fourth Amendment analysis in consensual searches, and, while that analysis may not be perfect, the Fourth Amendment mandates that Arkansas courts must consider the totality of the circumstances when officers obtain a subject's consent to enter his or her residence. Requiring an officer to advise the suspect that he or she has a right to refuse consent to a search in no way assures that future questions concerning illegal searches will be abated. For example, our court's review of whether an officer informed the resident that he or she had the right to refuse consent will continue to depend on the credibility of the officer or resident. The threshold question remains: Did the officer give the required admonition (you have the right to refuse to consent) to the resident, and, if the officer did, does the court then consider all other surrounding circumstances that may bear on the validity of the search?