State v. Filiatreau

George Rose Smith, Justice.

The appellee Philip Filiatreau, a tenth-grade student, and four others were charged with a conspiracy to commit a theft of property by threat. Philip was arrested at about 5:30 a.m. at his mother’s house, was taken to police headquarters, and signed a statement within a few minutes. This interlocutory appeal by the State is from an order suppressing the statement as having been the result of a warrantless arrest that violated the principles announced in Payton v. New York, 445 U.S. 573 (1980). Our jurisdiction of such appeals is stated in Rule 29 (1) (k).

The appellant argues that the officers did not have probable cause to make a warrantless arrest. That issue was not properly raised below and was not decided by the trial court. The motion to suppress merely stated that the statement, having been made while Philip was in custody, was “presumptively involuntary and should be so ruled.” The presumption of involuntariness arises from the fact that the accused is in custody, not from the manner of his arrest. At the hearing the prosecutor stated with regard to the arrest that the issue had not been raised in the written motion (which was correct) and that the State was not prepared with its witnesses on that issue. The court had said at the outset that it was going to overrule anything that had not been asserted in a motion filed before the omnibus hearing, as the court’s rule required. The court did not pass upon the issue of probable cause. It is not before us.

The real issue is whether Philip’s arrest violated the Payton doctrine. Philip lived in his mother’s house and had his own bedroom. Mrs. Filiatreau testified that when she answered the door that morning two officers identified themselves and said they needed to come in and talk to Philip and would have to take him downtown and question him. When they asked if they could come in, “I told them yes. ... I told them that he was asleep. They told me that I would have to get him up. His room is directly off the entry hall. I went in and shook him. Detective Stone stood over him.” Detective Baer took Mrs. Filiatreau into the den and explained that they were going to arrest Philip on charges of kidnapping, extortion, and other things. She said the officers used no force or threats. After Philip had dressed he was arrested and taken down to headquarters. The trial judge ruled that the arrest was illegal, reasoning that Philip was in his room, “his bedroom, asleep, that he was using that as his home and that he had, obviously, an expectation of privacy in that room, and that was not waived by his mother.” The court suppressed Philip’s statement as a product of the arrest.

We disagree with the trial judge’s understanding of the court’s holding in Payton. There the officers, in seeking to make a warrantless arrest without exigent circumstances, broke open Payton’s door when no one was there and seized evidence, which the Supreme Court suppressed. The court held that a nonconsensual warrantless entry into a person’s home is unlawful except in exigent circumstances. It was specifically pointed out that the court was "dealing with entries into homes without the consent of any occupant.”

Here it is the element of consent that distinguishes the two cases. There is no showing that Mrs. Filiatreau’s consent to the officers’ entry into the home was not voluntary. The trial judge did not so find. The case is therefore controlled by our decision in Grant v. State, 267 Ark. 50, 589 S.W. 2d 11 (1979), where the foster father of the defendant (who was apparently an adult earning his own living) was the owner of the house, with the defendant having his own bedroom. In holding that the foster father could consent to a search of the defendant’s bedroom we cited a number of cases to support our conclusions: "A child, either dependent or emancipated (having reached his majority) does not have the same constitutional right or expectation of privacy in the family home that he might have in a rented hotel room, and the rights of the father [are] superior to those of the child, so that the father’s consent to a search of the child’s room [is] sufficient to render a warrantless search reasonable.”

Both Payton and Grant deal with a seizure of property, while the present case deals with an arrest, which may be regarded as a seizure of the person. Certainly the Fourth Amendment protects persons as well as property from unreasonable seizures, but a basic question is whether the officer has a right to be where he is when he makes an arrest or seizes property. In either case a valid consent to the officer’s presence dispenses with the need for an arrest warrant or a search warrant. Here the officers, by reason of Mrs. Filiatreau’s consent, had a right to be in the house and in Philip’s bedroom. In the circumstances they unquestionably had the right to place him under arrest. The suggestion that Philip had to consent to his own arrest cannot be defended. An arrest, by definition, is a restraint of a person against his will. Thus a consensual arrest is a contradiction in terms, amounting merely to a surrender to authority. Philip’s consent to his own arrest in his home was not required, given the officers’ lawful presence there, any more than it would have been required upon a public street.

Reversed, the motion to suppress to be denied.

Purtle, J., dissents.