The opinion
HART, J., concurring.
|¾⅞1 agree that this case should be affirmed, but I write separately to disclose my reasoning for affirming with regard to the search issue. The manner and extent of the State’s intrusion into Mr. Jackson’s person is certainly disturbing — the police exposed his private parts in the middle of a public street so that they could search for contraband in his “butt cheeks.” However, resolution of this case rests entirely upon the validity of the consent that the police claimed that Mr. Jackson gave to them. The majority apparently believes that this is a case of whether to believe the police when they said that Mr. Jackson consented or Mr. Jackson, who denied giving that consent. If indeed that is what the majority is saying, this analysis appears overly simplistic.
Rule 11.1 of the Arkansas Rules of Criminal Procedure states in pertinent part:
(a) An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search.
(b) The state has the burden of proving by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion.
Accordingly, under Rule 11.1, the question is never merely whether a defendant voiced consent, but also whether he voiced that consent to search “freely and voluntarily” without “actual or implied duress or coercion.” Under our standard of review, we are required to analyze this question employing an objective standard in reviewing the totality of the circumstances. Benavidez v. State, 352 Ark. 374 , 101 S.W.3d 242 (2003). This review necessarily means doing more than looking at the arresting officer’s testimony that the appellant’s consent was voluntary. However, after careful consideration, and multiple readings of the trial court’s rulings with regard to the search, I have concluded that the issue of the validity of Mr. Jackson’s consent is not preserved for appellate review.
12?jlt is axiomatic that on appeal, we may only consider arguments that are raised to the trial court and ruled upon. Akins v. State, 330 Ark. 228 , 955 S.W.2d 483 (1997). Here, there were rulings on several aspects of Mr. Jackson’s efforts to suppress the fruits of the search. His initial motion to suppress alleged that the search violated his constitutional rights because the police did not have “probable cause or reasonable suspicion to run a body cavity search.” The motion specifically referred to the seizure of Mr. Jackson as “an illegal arrest.” This motion was denied prior to the proceeding that is quoted at length by the majority. Prior to this proceeding, an amended version of the suppression motion was filed, which in addition to re-alleging the grounds in the first motion, also specifically referenced Rule 12.8 of the Arkansas Rules of Criminal Procedure, which concerns search of body cavities and requires a doctor or a nurse to search the body cavities. This motion was heard simultaneously with Mr. Jackson’s bench trial.
At the close of the State’s case, Mr. Jackson’s trial counsel “renewed” his suppression motion. He specifically referenced Rule 11.1 of the Arkansas Rules of Criminal Procedure and asserted that “mere acquiescence to authority is not consent.” However, it is apparent that Mr. Jackson did not obtain a ruling from the trial court regarding the validity of his consent. In its ruling from the bench, the trial court stated its understanding that all that Mr. Jackson was challenging, beyond what had been ruled on when the court had disposed of the original suppression motion, was that the “period of time [was] longer than necessary or that he was held after there was a warrant check and there weren’t any outstanding warrants, and should have been released after that instead of held and asked for consent to search.” The trial court found the continued detention reasonable.
124After Mr. Jackson and Monica Foster testified to dispute the police’s account of the search, Mr. Jackson again “renewed” his motion, arguing that the body-cavity-search procedures were improper and that the police violated Rule 8.1 of the Arkansas Rules of Criminal Procedure due to the length of his detention after the fruitless pat-down search. The trial court again denied Mr. Jackson’s motion to suppress without ruling on the validity of his consent. As alluded to previously, none of these rulings preserve the question of the validity of Mr. Jackson’s consent for our review.