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Ark.]
State v. Brown
Cite as 356 Ark. 460 (2004)
467


U.S. 740 (1984); Scott v. State, 347 Ark. 767, 67 S.W3d 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.W3d 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.W2d 918 (1999); Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980). A valid consent to search must be voluntary, and "[v]oluntariness is a question of fact to be determined from all the circumstances." 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. Gonzalez, 71 F.3d 819 (11th Cir. 1996)).

Stone v. State, 348 Ark. 661, 669, 74 S.W.3d 591, 595 96 (2002). We further observed that the State must prove by clear and positive testimony that the consent to enter and search was unequivocal and specific. See id.

[5] This court has further held that the "knock-and-talk" procedure is not per se violative of the Fourth Amendment to the United States Constitution. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002) (citing Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001); United States v. Jones, 239 F.3d 716 (5th Cir. 2001); United States v. Johnson, 170 F.3d 708 (7th Cir. 1999); United States v. Jerez, 108 F.3d 684 (7th Cir. 1997)). Indeed, the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), while recognizing that the Fourth Amendment protects the privacy of a home dweller against arbitrary intrusions by police officers, held that the Fourth Amendment did not require knowledge of the right to refuse consent as a prerequisite to a showing of voluntary consent.

[6] Despite the federal constitution and federal case law, this court has made it abundantly clear that though the search-and-seizure language of Article 2, § 15, of the Arkansas Constitution is very similar to the words of the Fourth Amendment, we are not bound by the federal interpretation of the Fourth Amendment when interpreting our own law. See, e.g., Jegley v. Picado, 349 Ark.