ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION IV

LLOYD STONE, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1104

December 19, 2001

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

[NO. CR98-386-I]

HON. JOHN H. WRIGHT,

CIRCUIT JUDGE

CONCURRING OPINION ON DENIAL OF REHEARING

This court recently reversed appellant's drug conviction and remanded the case for a new trial, concluding that the trial court had erred in denying appellant's motion to suppress evidence discovered during a warrantless search of appellant's home. See Lloyd Stone, Jr. v. State of Arkansas, CACR00-1104 (unpub. op. del. October 24, 2001). In that opinion, we held that a police officer illegally entered appellant's home prior to discovering the evidence sought to be suppressed. The State has filed a petition for rehearing. It argues, inter alia,1 that we failed to address a crucial issue, namely that, assuming that the officer illegally entered appellant's home, the eventual search was nonetheless legal because it was

supported by a valid consent to search that was sufficiently attenuated as "to purge the taint of the initial, unlawful conduct."

To the extent that the State argues that the opinion is not fully responsive to the issue presented by the case, I agree. There was testimony that the evidence used against appellant at his trial was not discovered upon entering the home, but rather that it was found after appellant called his lawyer on the telephone and after appellant subsequently gave his consent to a search of the premises. The issue before us was not simply the legality of the initial entry into appellant's home. Although the discovery of the evidence was causally connected to the unconstitutional entry into appellant's home, that is not the end of the inquiry. Because it is possible for the causal chain between an illegality and the subsequent discovery of evidence to be broken, we must further determine whether appellant's intervening consent to search was "_sufficiently an act of free will to purge the primary taint.'" See United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994), cert. denied 514 U.S. 1134 (1995), (quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963)). The earlier opinion did not address this question.

However, I do not agree with the State's argument that it demonstrated a sufficient attenuation between the officer's illegal entry and the discovery of the evidence to purge the taint of the unlawful conduct. Although no single fact is dispositive of this inquiry, the purpose and flagrancy of the official misconduct are particularly relevant. Brown v. Illinois, 422 U.S. 590 (1975). It appears that, in the present case, the purpose of the police officer's visit was to obtain consent to perform a warrantless search of appellant's residence and,when this consent was denied, the officer entered appellant's home without permission, listened as appellant telephoned his attorney, and then spoke to the attorney himself. I think it significant that the attorney advised appellant to cooperate because the attorney mistakenly believed, from his conversation with the officer, that the search was already well under way and had already yielded enough to warrant appellant's arrest. The search is therefore directly attributable to the police officer's illegal entry of appellant's home.

It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, and that the principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992). Given the seriousness of the Fourth Amendment violation in this case, the purposeful and flagrant nature of the violation, and the direct causal connection between the illegal entry and the consent to search, I think that we were right to reverse this case.

1 I find the State's remaining arguments on rehearing to be adequately answered in the earlier opinion.