{ "id": 74140, "name": "Lloyd STONE, Jr. v. STATE of Arkansas", "name_abbreviation": "Stone v. State", "decision_date": "2002-05-16", "docket_number": "CR 01-1239", "first_page": "661", "last_page": "675", "citations": [ { "type": "official", "cite": "348 Ark. 661" }, { "type": "parallel", "cite": "74 S.W.3d 591" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "271 Ark. 810", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756184 ], "weight": 2, "year": 1981, "pin_cites": [ { "parenthetical": "taint of pretextual arrest attenuated when defendant's girlfriend told defendant that she had already implicated him in the criminal activity" }, { "parenthetical": "taint of pretextual arrest attenuated when defendant's girlfriend told defendant that she had already implicated him in the criminal activity" } ], "opinion_index": 0, "case_paths": [ "/ark/271/0810-01" ] }, { "cite": "271 Ark. 512", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756057 ], "weight": 2, "year": 1980, "pin_cites": [ { "parenthetical": "a confession given 18 days after an illegal arrest was admissible, because the intervening time period sufficiently dissipated the taint." }, { "parenthetical": "a confession given 18 days after an illegal arrest was admissible, because the intervening time period sufficiently dissipated the taint." } ], "opinion_index": 0, "case_paths": [ "/ark/271/0512-01" ] }, { "cite": "422 U.S. 590", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9639 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/us/422/0590-01" ] }, { "cite": "42 F.3d 1160", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7417559 ], "year": 1994, "pin_cites": [ { "page": "1164", "parenthetical": "quoting Wong Sun v. United States, 371 U.S. 471 (1963)" } ], "opinion_index": 0, "case_paths": [ "/f3d/42/1160-01" ] }, { "cite": "338 Ark. 409", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "920 F.2d 1423", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10548957 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/f2d/920/1423-01" ] }, { "cite": "269 Ark. 380", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712564 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0380-01" ] }, { "cite": "328 Ark. 420", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50418 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0420-01" ] }, { "cite": "71 F.3d 819", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7415194 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "830" } ], "opinion_index": 0, "case_paths": [ "/f3d/71/0819-01" ] }, { "cite": "412 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172008 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/412/0218-01" ] }, { "cite": "519 U.S. 33", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11594631 ], "year": 1996, "pin_cites": [ { "page": "40", "parenthetical": "quoting Schneckloth v. Bustamonte, 412 U.S. 218 (1973)" } ], "opinion_index": 0, "case_paths": [ "/us/519/0033-01" ] }, { "cite": "268 Ark. 261", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715390 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0261-01" ] }, { "cite": "993 S.W.2d 918", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 243561, 243503 ], "weight": 3, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0395-01", "/ark/338/0397-01" ] }, { "cite": "338 Ark. 397", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243503 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0397-01" ] }, { "cite": "321 Ark. 39", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449618 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0039-01" ] }, { "cite": "347 Ark. 530", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683428 ], "weight": 4, "year": 2002, "pin_cites": [ { "parenthetical": "citing Ark. R. Crim. P. 11.1; Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995)" }, { "parenthetical": "citing Ark. R. Crim. P. 11.1; Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995)" }, { "page": "538-9" }, { "page": "865" } ], "opinion_index": 0, "case_paths": [ "/ark/347/0530-01" ] }, { "cite": "309 Ark. 211", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906054 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0211-01" ] }, { "cite": "466 U.S. 740", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205546 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0740-01" ] }, { "cite": "347 Ark. 767", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683250 ], "weight": 4, "year": 2002, "pin_cites": [ { "parenthetical": "declining to address unpreserved state constitutional argument in a knock-and-talk case" }, { "parenthetical": "declining to address unpreserved state constitutional argument in a knock-and-talk case" } ], "opinion_index": 0, "case_paths": [ "/ark/347/0767-01" ] }, { "cite": "324 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9158922 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0158-01" ] }, { "cite": "326 Ark. 210", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12021600 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0210-01" ] }, { "cite": "330 Ark. 8", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298586 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0008-01" ] }, { "cite": "330 Ark. 66", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298605 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0066-01" ] }, { "cite": "371 U.S. 471", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 450611 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/371/0471-01" ] }, { "cite": "403 N.W.2d 498", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1987, "opinion_index": 0 }, { "cite": "157 Mich. App. 68", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2276146 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/mich-app/157/0068-01" ] }, { "cite": "82 Wis. 2d 401", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8672777 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/wis-2d/82/0401-01" ] }, { "cite": "255 S.E.2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551827 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/41/0729-01" ] }, { "cite": "325 Ark. 110", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369265 ], "weight": 6, "year": 1996, "pin_cites": [ { "page": "124" }, { "page": "658" }, { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/ark/325/0110-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-64-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "parenthetical": "m" }, { "parenthetical": "m" } ], "opinion_index": 0 }, { "cite": "325 Ark. 155", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369202 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0155-01" ] }, { "cite": "340 Ark. 53", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365318 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0053-01" ] }, { "cite": "343 Ark. 62", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226498 ], "weight": 4, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/343/0062-01" ] }, { "cite": "309 Ark. 503", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906094 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0503-01" ] }, { "cite": "312 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935017 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0158-01" ] }, { "cite": "335 Ark. 427", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862784 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/335/0427-01" ] }, { "cite": "340 Ark. 598", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365313 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0598-01" ] }, { "cite": "310 Ark. 460", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898873 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0460-01" ] }, { "cite": "332 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377625 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0007-01" ] }, { "cite": "346 Ark. 304", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111292 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/346/0304-01" ] }, { "cite": "319 Ark. 739", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453673 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0739-01" ] }, { "cite": "326 Ark. 3", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12019922 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0003-01" ] }, { "cite": "342 Ark. 95", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342428 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/342/0095-01" ] }, { "cite": "304 Ark. 159", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880841 ], "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "supplemental opinion" }, { "page": "637", "parenthetical": "supplemental opinion" } ], "opinion_index": 0, "case_paths": [ "/ark/304/0159-01" ] }, { "cite": "945 S.W.2d 582", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1997, "pin_cites": [ { "page": "585", "parenthetical": "supplemental opinion" } ], "opinion_index": 0 }, { "cite": "328 Ark. 388", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50359 ], "year": 1997, "pin_cites": [ { "page": "393", "parenthetical": "supplemental opinion" } ], "opinion_index": 0, "case_paths": [ "/ark/328/0388-01" ] }, { "cite": "346 Ark. 388", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111307 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/346/0388-01" ] }, { "cite": "347 Ark. 336", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683340 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/347/0336-01" ] }, { "cite": "333 Ark. 92", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703833 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/333/0092-01" ] }, { "cite": "347 Ark. 142", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683354 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/347/0142-01" ] } ], "analysis": { "cardinality": 1015, "char_count": 22905, "ocr_confidence": 0.733, "pagerank": { "raw": 7.399745230508676e-07, "percentile": 0.9692233022079666 }, "sha256": "2db31114a082f067cfc136f3592d14dee101af7bcf0228bfa94e549fa7e6ed10", "simhash": "1:fc49622c61eed32a", "word_count": 3840 }, "last_updated": "2023-07-14T18:20:10.754650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Lloyd STONE, Jr. v. STATE of Arkansas" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nAppellant Lloyd Stone, Jr., appeals his judgment of conviction for manufacture of methamphetamine and his sentence of twenty-seven years. He raises six points on appeal. We reverse on the refusal of the trial court to suppress the evidence seized, and we remand for further proceedings.\nFor several months, Garland County Sheriffs Department Investigators Corey DeArmon and Danny Wilson had been monitoring Stone\u2019s home because they suspected that he was involved in the manufacture or sale of methamphetamine. On the night of September 17, 1998, at approximately 8:30 p.m., the two investigators knocked on the door of Stone\u2019s home. They had not obtained a search warrant but had decided to use the \u201cknock and talk\u201d procedure for obtaining a consent to search. When he answered the door, Officer DeArmon asked Stone if they could search the premises. After Stone answered the door, the officers could smell a strong odor which they associated with the manufacture of methamphetamine.\nStone refused to give his consent to search. Instead, he stated that he wanted to call his attorney, Hugh Alexander. He turned around and walked back into the house. When he did so, at least one police officer followed him. It is a matter of some dispute as to why the police officer entered Stone\u2019s home. Stone called his attorney, and the police officer listened to his conversation. At one point, Stone put Officer DeArmon on the telephone with Hugh Alexander. What was said in that conversation is also matter of factual dispute. Officer DeArmon testified at the suppression hearing that Stone\u2019s attorney advised Stone to consent to the search. Alexander disputed this assertion, noting that most of his law practice was criminal defense work and that he would not advise a client to consent to a warrandess search of that client\u2019s home. Alexander maintained that Officer DeArmon falsely told him that he and Officer Wilson had already found evidence of the manufacture of methamphetamine taking place in the home. Thus, Alexander claimed, he thought his client was about to be arrested, and he told Officer DeArmon not to question him until he could make it out to the house.\nAnother area of dispute is whether, after the telephone call, Stone consented to the police officers\u2019 search of his home. Stone maintained that he gave no consent. Officer DeArmon, on the other hand, stated that not only did Stone give his consent, he also escorted the police officers around his house and showed them the contraband. All parties agree that Stone was not offered a consent-to-search form. The two police officers found ingredients for making methamphetamine as well as containers they suspected to be involved in the manufacture of methamphetamine. They arrested Stone for attempted manufacture of methamphetamine, and he was later charged with that offense.\nStone moved to suppress the physical evidence seized at his house on the night in question. He argued that he did not give his consent for the officers to enter his home and that he did not give his consent to search the premises. Following a hearing on the motion to suppress, the trial court denied the motion. On April 3, 2000, the State amended the criminal information to change the charged offense from attempted manufacture, a Class A felony, to manufacture, a Class Y felony. The matter proceeded to a jury trial on May 23, 2000. Stone was convicted of manufacture of methamphetamine and sentenced as stated above.\nStone appealed his conviction to the Arkansas Court of Appeals. In an unpublished opinion, the Court of Appeals reversed Stone\u2019s conviction under Fourth Amendment principles governing consent to search. See Stone v. State (Ark. App. Oct. 24, 2001). The Court of Appeals held specifically that Stone gave no consent for Officer DeArmon\u2019s initial entry into his home. The State petitioned for rehearing and argued that any taint of this illegal entry was attenuated by the subsequent consent to search that Officer DeArmon maintained Stone gave him after consulting with his attorney. That petition was denied. The State petitioned for review from the Court of Appeals\u2019 decision, and we granted that petition.\nWe review this case as if the appeal from the judgment of conviction was originally filed in this court. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998).\nI. Sufficiency of the Evidence\nFor double jeopardy reasons, we first consider Stone\u2019s claim that there was insufficient evidence to support his conviction. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002); Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001). Though we are excluding the methamphetamine seized in this case, the proper disposition is to reverse and remand for the possibility of a new trial. See Crisco v. State, 328 Ark. 388, 393, 945 S.W.2d 582, 585 (1997) (supplemental opinion); Nard v. State, 304 Ark. 159, 163-A, 801 S.W.2d 634, 637 (1991) (supplemental opinion). Accordingly, the issue of whether sufficient evidence was presented by the State to support the conviction must be considered first, as lack of sufficient evidence would result in a reversal and dismissal of the case.\nWe treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000); Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Williams v. State, 346 Ark. 304, 57 S.W.3d 706 (2001); Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000); Willett v. State, 335 Ark. 427, 983 S.W.2d 409 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Haynes v. State, supra; Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993); Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992). Further, this court will not second-guess credibility determinations made by the factfinder. Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996).\nIn challenging the sufficiency of the evidence supporting his conviction, Stone specifically argues that the State did not prove that he was manufacturing methamphetamine for anyone\u2019s use but his own. He points to the fact that under Ark. Code Ann. \u00a7 5-64-101 (m), \u201cmanufacture\u201d must be manufacture for a use other than one\u2019s personal consumption. See Ark. Code Ann. \u00a7 5-64-101 (m) (Repl. 1997). That section reads:\n(m) \u201cManufacture\u201d means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance .... (Emphasis added.)\nThus, \u201cpreparation or compounding\u201d of an illegal substance for one\u2019s own use does not constitute \u201cmanufacture.\u201d\nThis Court has considered personal-use arguments in the context of the manufacture of methamphetamine in prior cases. See, e.g., Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). In Owens, this Court rejected a personal-use argument and adopted the rationale of the appellate court in a sister state:\nThe plain meaning of the exception is to avoid making an individual liable for the felony of manufacturing a controlled substance in the situation where, being already in possession of a controlled substance, he makes it ready for use (i.e., rolling marijuana into cigarettes for smoking) or combines it with other ingredients for use (i.e., making the so-called \u201cAlice B. Toklas\u201d brownies containing marijuana).\nOwens, 325 Ark. at 124, 926 S.W.2d at 658 (quoting State v. Childers, 41 N.C. App. 729, 255 S.E.2d 654 (1979)). The Owens decision distinguished between the \u201cpreparation or compounding\u201d of a controlled substance for personal use such as the rolling of a marijuana cigarette and the creation of such a substance. Owens, 325 Ark. at 124, 926 S.W.2d at 658 (citing State v. County Court for Columbia County, 82 Wis. 2d 401, 263 N.W.2d 162 (1978); People v. Pearson, 157 Mich. App. 68, 403 N.W.2d 498 (1987)).\nHere, the State produced sufficient evidence that Stone was indeed manufacturing methamphetamine by means of the necessary ingredients and required apparatus. The personal-use exception does not apply, and Stone\u2019s sufficiency argument is without merit.\nStone, however, makes an alternative sufficiency argument. He claims that the State failed to prove when any manufacture of methamphetamine took place. The State correctly points out that this argument is made for the first time on appeal. Accordingly, this court will not address it. Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000).\nWe affirm the trial court on the sufficiency point.\nII. Suppression\nStone\u2019s central contention in this appeal is that the search of his home was illegal because he did not give valid consent to enter. Thus, any items seized such as the products used to manufacture methamphetamine constituted the fruit of the poisonous tree and should be suppressed. See Wong Sun v. United States, 371 U.S. 471 (1963).\nIn reviewing a trial court\u2019s ruling denying a defendant\u2019s motion to suppress, we make an independent determination based on the totality of the circumstances and view the evidence in the light most favorable to the State. We reverse only if the trial court\u2019s ruling is clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997); Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996); Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996).\nAs an initial matter, Stone argues in his supplemental brief after we granted the State\u2019s petition for rehearing that the search and seizure was illegal under the state constitution. We refuse to consider this argument since it was never made to the trial court or to our court of appeals. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002) (declining to address unpreserved state constitutional argument in a knock-and-talk case).\nWe turn then to Stone\u2019s primary argument, which is that his conviction should be reversed under the Fourth Amendment of the United States Constitution. He premises his argument on the fact that he never gave a valid consent to law enforcement officers to enter his home. The State counters that this issue is really one of credibility for the trial court to resolve and that this court should defer to the trial court\u2019s finding not to suppress on that basis.\nA warrantless entry into a private home is presumptively unreasonable under the Fourth Amendment. Welsh v. Wisconsin, 466 U.S. 740 (1984); Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002); Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992). However, the presumption of unreasonableness may be overcome if the law-enforcement officer obtained the consent of the homeowner to conduct a warrantless search. See Holmes v. State, 347 Ark. 530, 65 S.W.3d 860 (2002) (citing Ark. R. Crim. P. 11.1; Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995)). This court has established that the State has a heavy burden to prove by clear and positive testimony that a consent to search was freely and voluntarily given. Holmes v. State, supra; Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999); Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980). A valid consent to search must be voluntary, and \u201c[v]oluntariness is a question of fact to be determined from all the circumstances.\u201d Ohio v. Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218 (1973)). Any consent given must be unequivocal and may not usually be implied. Holmes v. State, supra; Norris v. State, supra (citing U.S. v. Gonzales, 71 F.3d 819 (11th Cir. 1996)).\nThis court recently decided a case that bears some similarity to the one at bar. See Holmes v. State, supra. In Holmes, we reversed a trial court\u2019s suppression decision where police officers followed an individual into a private home with no invitation to do so. Once inside, the officers discovered marijuana. The trial court denied the defendant\u2019s motion to suppress. We reversed the suppression decision and said:\nThis court had held 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. See, e.g., Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997); Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980)). The concept of \u201cimplied consent\u201d was examined in Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999), where this court looked to United States v. Gonzalez, 71 F.3d 819 (11th Cir. 1996), and wrote as follows:\nThe question of \u201cimplied consent\u201d . . . was more closely examined recently in U.S. v. Gonzalez, supra. In Gonzalez, the officer approached an individual outside her home and asked if she would consent to a search of her home. Following a conversation with her daughter, she told the officer she wanted to go inside and get a drink of water. The officer then told her he \u201cwanted to go in\u201d with her, and when she did not bar him from going in, he followed her inside. The Eleventh Circuit held that there was no consent to enter:\nWe have previously noted our hesitancy to find implied consent (i.e. consent by silence) in the Fourth Amendment context, and we agree with our colleagues in the Ninth Circuit that whatever relevance the implied consent doctrine may have in other contexts, it is appropriate to \u2018sanction entry into the home based upon inferred consent.\u2019\nGonzalez then quoted from U.S. v. Shaibu, 920 F.2d 1423 (9th Cir. 1990), to which it had referred above:\nThe government may not show consent to enter from the defendant\u2019s failure to object to the entry. To do so would be to justify entry by consent and consent by entry. \u201cThis will not do .\u2019\u2019Johnson v. United States, 333 U.S. at 17. We must not shift the burden from the government \u2014 to show \u201cunequivocal and specific\u201d consent \u2014 to the defendant, who would have to prove unequivocal and specific objection to a police entry, or be found to have given implied consent.\nGonzalez, 71 F.3d at 830; Norris, 338 Ark. 409, 993 S.W.2d 918 (emphasis in original).\nHolmes, 347 Ark. at 538-9, 65 S.W.3d at 865.\nTo justify the warrantless entry into Stone\u2019s home in the case before us, the State underscores one instance in Officer DeArmon\u2019s testimony at the suppression hearing when he testified that Stone said, \u201cCome on, I\u2019m going to call my attorney.\u201d At several other points in the police officer\u2019s testimony, however, he admitted that he was not invited into the home. The relevant part of Officer DeArmon\u2019s testimony at the suppression hearing follows:\nDefense Counsel: Now, what led you to believe that Mr. Stone had invited you in when he said he wanted to call his lawyer?\nOfficer DeArmon: \u2019Cause he said \u201cCome on, I\u2019m going to call my attorney.\u201d and [I] said \u201cThat\u2019s fine. I don\u2019t care.\u201d\nDefense Counsel: So, he invited you in?\nOfficer DeArmon: Sure, we went just right there in the door, right in the living room right there.\nDefense Counsel: Why would he invite you in if he wanted to call his lawyer, Mr. DeArmon?\nProsecutor: Objection, calls for speculation. He can\u2019t testify as to what somebody else . . .\nCourt: That\u2019s sustained.\nDefense Counsel: What conversations did you have? When he said he wanted to call his lawyer, did you say then \u201cI\u2019ll follow you in\u201d or \u201cI\u2019ll step in,\u201d or did you just follow him in, Mr. DeArmon?\nOfficer DeArmon: He said \u201cI want to call my attorney.\u201d Just like I said, and we walked in the house.\nDefense Counsel: Well, what right did you have to walk in the house? He didn\u2019t say \u201ccome in\u201d did he?\nOfficer DeArmon: We walked right there to get the phone.\nDefense Counsel: Exactly, Mr. DeArmon. It\u2019s not in your report anywhere that he invited you in is it?\nOfficer DeArmon: He did not tell us not to come in.\nDefense Counsel: He didn\u2019t tell you to come in either, did he?\nOfficer DeArmon: We did \u2014 we\u2019s standing right there in the doorway. He was \u2014 we were right there in the doorway.\nDefense Counsel: You entered the house, didn\u2019t you, Mr. DeArmon?\nOfficer DeArmon: Yes, I entered the house.\nDefense Counsel: You entered the house without' invitation?\nOfficer DeArmon: No, sir, with invitation. He didn\u2019t tell us to stay out.\nDefense Counsel: Why didn\u2019t you report that? Why isn\u2019t it written in your report that \u201cMr. Stone invited us in?\u201d What\u2019s in your report is that he \u2014 he wanted to call his lawyer.\nOfficer DeArmon: Uh-huh (affirmative).\nDefense Counsel: And you followed him in. That\u2019s not being invited, is it, Mr. DeArmon?\nOfficer DeArmon: I went with him. I mean, he could have went in and got a gun for all I know.\nDefense Counsel: And he would have every right to do so? He didn\u2019t have \u2014 he had every right to exclude you from his home.\nOfficer DeArmon: He sure did. At any time.\nDefense Counsel: Except you followed him in, didn\u2019t you?\nOfficer DeArmon: We didn\u2019t \u2014 we didn\u2019t enter the \u2014 we walked right there to the doorway where he grabbed the phone, and that\u2019s where we did all the discussing.\nDefense Counsel: But you came inside the door, Mr. DeArmon. Is that correct?\nOfficer DeArmon: Yes, sir. I guess we passed the threshold.\nDefense Counsel: And he \u2022\u2014 and Mr. Stone did not say \u201ccome in.\u201d You followed him. Is that not correct?\nOfficer DeArmon: He said \u201cI want to use the phone.\u201d Yes, I guess as your wording is, yeah, that\u2019d be correct.\nDefense Counsel: Well, not in my wording. Your wording. He never invited you in. He said he wanted to use the phone. He wanted to call his lawyer.\nOfficer DeArmon: Yes, sir.\nWe disagree with the State\u2019s casting of this issue as merely one of credibility. Under our caselaw, the State must show that in the context of a warrantless entry, the State must prove by clear and positive testimony that the consent to enter and search was unequivocal and specific. See Holmes v. State, supra; Norris v. State, supra. That heavy burden has not been met in this case. Officer DeArmon\u2019s testimony at the suppression hearing is far from unequivocal. At various times, he says he simply followed Stone into his house and that Stone never invited him in. What is clear is that when Officer DeArmon asked for a consent to search, which Stone declined. Stone then said he wanted to call his attorney. When Stone walked back into his house to do so, Officer DeArmon followed him.\nWe hold that the police officer\u2019s entry into Stone\u2019s home was illegal and not supported by the clear, positive, and unequivocal proof of consent required by our caselaw. We add as a corollary to this holding that were we to sanction a warrantless entry into a home solely based on a police officer\u2019s security concerns, we would be allowing that justification to be used for entry into any home under any circumstance. In effect, we would be significantly undermining the search warrant or consent requirement, which we will not do.\nThe State next contends that even assuming the police officer\u2019s entry was illegal, this defect was cured by Stone\u2019s consent to search after his conversation with his attorney. In analyzing this issue, we must determine whether Stone\u2019s consent to search was \u201csufficiently an act of free will to purge the primary taint.\u201d United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994) (quoting Wong Sun v. United States, 371 U.S. 471 (1963)). Further, the attenuation must be determined by weighing the seriousness of the police misconduct. Brown v. Illinois, 422 U.S. 590 (1975). This court has previously held that a lapse of time can dissipate the taint of illegal police conduct. See, e.g., Mitchell v. State, 271 Ark. 512, 609 S.W.2d 333 (1980) (a confession given 18 days after an illegal arrest was admissible, because the intervening time period sufficiently dissipated the taint.). We have also held that an intervening event can be an attenuating circumstance. See, e.g., Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981) (taint of pretextual arrest attenuated when defendant\u2019s girlfriend told defendant that she had already implicated him in the criminal activity).\nIn this case, we have neither time nor intervening events to dissipate the taint of Officer DeArmon\u2019s illegal entry into Stone\u2019s home. There clearly was very little time lapse between the police officer\u2019s entry and Stone\u2019s consent. The only real question is whether the telephone call to Stone\u2019s attorney constituted an event which would cure the illegal entry. We conclude that it did not. There was much confusion and contradictory testimony about what transpired with Stone\u2019s attorney. Officer DeArmon was present during the entire telephone conversation and was listening. When the police officer got on the telephone himself, Stone\u2019s attorney testified that he was misled by the police officer about what was occurring. Any consent that was given immediately thereafter can not be said to be attenuated from the taint of the illegal entry. As the United States Supreme Court has noted in this regard, the purpose and flagrancy of the violation is always relevant. See Brown v. Illinois, supra.\nWe hold that Stone\u2019s consent to search following the telephone conversation with his attorney was not sufficiently attenuated from Officer DeArmon\u2019s illegal entry in the house. The methamphetamine and methamphetamine-manufacturing products seized as a result of the illegal entry and search are the fruit of the poisonous tree and must be suppressed. Wong Sun v. United States, supra; Holmes v. State, supra.\nThe other points raised by Stone (the refusal to grant a continuance, the change in the form of the methamphetamine, the trial court\u2019s interruption of counsel during cross examination, and the failure to give the personal-use instruction) have either been answered in this opinion or are not likely to recur in the event of retrial.\nReversed and remanded.\nIt is unclear from the record whether Officer Wilson entered the house for purposes of Stone\u2019s telephone call to his attorney.", "type": "majority", "author": "Robert L. Brown, Justice." } ], "attorneys": [ "T.B. Patterson, Jr., for appellant.", "Mark Pryor, Att\u2019y Gen., by: Clayton K. Hodges, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Lloyd STONE, Jr. v. STATE of Arkansas\nCR 01-1239\n74 S.W.3d 591\nSupreme Court of Arkansas\nOpinion delivered May 16, 2002\nT.B. Patterson, Jr., for appellant.\nMark Pryor, Att\u2019y Gen., by: Clayton K. Hodges, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0661-01", "first_page_order": 683, "last_page_order": 697 }