Ark. R. Crim. P. 11.1

As amended through November 13, 2023

Rule 11.1 - Authority to Search and Seize Pursuant to Consent

(a) An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search.

(b) The state has the burden of proving by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion.

(c) A search of a dwelling based on consent shall not be valid under this rule unless the person giving the consent was advised of the right to refuse consent. For purposes of this subsection, a "dwelling" means a building or other structure where any person lives or which is customarily used for overnight accommodation of persons. Each unit of a structure divided into separately occupied units is itself a dwelling.

Ark. R. Crim. P. 11.1

Reporter's Notes to 2004 Amendments: The 2004 amendments added subsections (b) and (c). Subsection (b) codifies the burden of proof imposed on the state beginning with such cases as Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980) and Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978). Arkansas Supreme Court jurisprudence on consensual searches requires the state to prove the voluntary character of consent by "clear and positive evidence" or "clear and positive testimony." Subsection (c) incorporates the holding of State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004), which requires that a home dweller be advised of his or her right to refuse consent to a search of the dwelling.