The opinion
Sam Bird, Judge, dissenting. The majority has concluded udge, convictions must be reversed because the evidence relied upon by the State to prove his guilt was obtained as a result of a constitutionally unreasonable search of appellant’s residence. I disagree with this conclusion because, in my opinion, appellant consented to the search. Therefore, I would affirm appellant’s convictions.
I begin my discussion by noting that it does not appear to me that the majority opinion accurately reflects the suppression-hearing testimony of Detective Chris Chapmond. For example, the majority opinion omits Chapmond’s direct-examination testimony that when appellant was standing on his front porch explaining to Chapmond what he was doing with the blank check stock, appellant explained that he was making gift certificates, and that appellant “invited me inside to show me the artwork on the computer.” The majority opinion also omits Chapmond’s direct-examination testimony that, after making this statement, appellant turned and entered his residence, whereupon Chapmond followed appellant inside and observed appellant sit down at his computer. Further, the majority omits Chapmond’s cross-examination testimony that “[appellant] invited me in,” by words to the effect that, “I will show you the artwork, it’s on my computer.” Finally, the majority opinion omits Chapmond’s re-direct testimony, “I could not see the computer from the porch and he did not offer to bring it to the door.” Because it failed to consider much of Detective Chapmond’s testimony on the crucial issue of consent to search, it is not surprising that the majority has reached the wrong result in this case.
In my opinion, the appellant, by his words and conduct, consented to Chapmond’s entry into his residence. It therefore follows that the statement obtained from Dendy following his arrest was not “fruit of the poisonous tree.” Thus, I respectfully dissent from the opinion of the majority that the evidence seized from Dendy’s home and his statement to police should have been suppressed.
As the majority opinion correctly observes, the State’s case is based entirely upon evidence that was obtained as a result of a warrantless search of appellant’s residence, and upon appellant’s statement to police that followed the search. Also correctly noted by. the majority is the well-established premise that warrantless searches are presumptively unreasonable, but that the presumption is overcome by evidence of the owner’s consent to the search.
In concluding that the search in the case now before us was unreasonable and without consent, the majority opinion relies primarily on Holmes v. State, 347 Ark. 530 , 65 S.W.3d 860 (2002). However, I believe that Holmes is factually distinguishable from this case. In Holmes, Faulkner County sheriff s officers responded to a domestic violence call at Perry Holmes’s residence. As the officers turned into the driveway, Holmes and another man came out of the house and they were taken into police custody. One of the officers, David Srite, then observed a woman, identified as Rosa Beth Allen, standing in the doorway of Holmes’s house, and Srite decided to question her about Holmes. When the officer asked Allen if there was anywhere they could talk, she opened the door, stepped back, and “may have nodded,” gestures that Srite interpreted as Allen’s invitation to come into the house. Upon entering the house, Srite discovered illegal drugs and drug paraphernalia. Srite then went back outside and asked Holmes to sign a consent-to-search form, which he did. An ensuing search of Holmes’s residence led to the discovery of marijuana, marijuana “roaches,” marijuana seeds, and methamphetamine, and to three charges of possession against Holmes.
In a motion to suppress the evidence that resulted from the search, Holmes specifically argued, among others things not pertinent here, that Allen had not consented to the search of his residence. The trial court denied Holmes’s motion, and Holmes entered a conditional guilty plea, reserving the right to appeal from the denial of his suppression motion.
On appeal, Holmes again argued that Allen’s conduct in opening the door, stepping back, and nodding when asked by Srite if there was anywhere they could talk, did not constitute a consent to search. The supreme court agreed with Holmes, stating:
To conclude that Allen’s actions amounted to an invitation to Srite’s entry would be to “sanction entry into the home based upon inferred consent,” which we are loathe to do. Also, Srite conceded that Allen “appeared to be under the influence,” which added to the uncertainty and lack of clarity of what Allen intended by her actions.
Holmes, 347 Ark. at 540 , 65 S.W.3d at 866 . In making this decision, the Holmes court relied upon Martin v. State, 328 Ark. 420 , 944 S.W.2d 512 (1997), Meadows v. State, 269 Ark. 380 , 602 S.W.2d 636 (1980), and Norris v. State, 338 Ark 397 , 993 S.W.2d 918 (1999) (citing United States v. Gonzalez, 71 F.3d 819 (11th Cir. 1996), none of which limit the validity of consent to a warrandess search to situations involving an express invitation to enter. I agree that Holmes and the cases cited therein hold that “consent to an invasion of privacy must be proved by clear and positive testimony, and this burden is not met by showing only acquiescence to a claim of lawful authority”; and I agree that Holmes appears to also hold that, in addition to being clear and positive, the testimony must establish that the giving of consent to enter must be unequivocal and specific. However, I do not agree, as the majority opinion seems to imply, that in determining whether consent has been given, a police officer is not permitted to draw any inferences from the language or conduct of the person purporting to grant consent, and I do not agree that the testimony presented here does not meet the Holmes standards.
Unlike in Holmes, here an officer was in the area of appellant’s residence looking for a suspect in an unrelated matter when appellant came outside. Detective Chapmond saw appellant standing in his doorway with blank check paper and asked him what he was doing. Appellant responded that he was making gift certificates, and he said something to the effect of “Let me show you the artwork on my computer.” At that point, appellant turned around and went inside, and the officer followed him and observed appellant take a seat in front of his computer. The officer stated that he interpreted appellant’s statement as “an invitation.” .1 believe that this is sufficient evidence from which the trial court could have concluded that appellant clearly, positively, and unequivocally invited Detective Chapmond to enter his residence to look at something on his computer.
Furthermore, unlike in Holmes, in this case appellant knew that the police were not investigating criminal activity at his residence, so he could not have believed that he was merely acquiescing to a claim of lawful authority. Nor did appellant, who testified at the suppression hearing, suggest that the officers asked him for permission to enter his house. Rather, he testified that the officers merely walked into his house and asked him what he was doing, contradicting the officer’s testimony that appellant invited them in to see the artwork on his computer. We defer to the factfinder’s resolution of issues of credibility and weight to be given to conflicting testimony. See Porter v. State, 356 Ark. 17 , 145 S.W.3d 376 (2004). Also, unlike in Holmes, here there is no evidence that appellant was “under the influence” such as to create any uncertainty or lack of clarity as to what appellant intended by his words and actions of appellant’s actions. Finally, unlike in Holmes, here we have evidence of words actually spoken by appellant which can be reasonably interpreted to be an invitation, not just an ambiguous nod of the head.
Once the officers had lawfully entered appellant’s residence, they lawfully seized items in plain view, see Fultz v. State, 333 Ark. 586 , 972 S.W.2d 222 (1998), and appellant thereafter gave written consent to search his home. I also believe that appellant’s statement to police was properly allowed into evidence because it was not derived from an unlawful entry into his home. Where the entry was not illegal, the statement cannot be the “fruit of the poisonous tree.” See Baird v. State, 357 Ark. 508 , 182 S.W.3d 136 (2004). I would therefore affirm the trial court’s decision to deny appellant’s motion to suppress evidence.
Crabtree, J., joins.