10 Ei8ht In Service For
Arkansas Law Enforcement
May 2014
Inside This Issue
Dear 10-8 Readers,
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2014 has already been a busy year for the Attorney General’s Office and a challenging year for the Arkansas law enforcement community. Our hearts remain heavy with concern for the families affected by the April 27 tornadoes that ripped through western Pulaski County, Vilonia and Mayflower.
Opinions Corner Never Forgotten � Arkansas Takes Action
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As the state’s chief law enforcement officer, I was so proud of our first responders on that terrifying Sunday night. As the EF4 twister moved through our state, these brave men and women parted with their own families and rushed into the most dangerous areas to help other families who had lost their homes and loved ones.
Arkansas Law Enforcement Records Move Into The 21st Century
I’ve also been touched by how fellow Arkansans have rallied to support these storm-ravaged communities. I know that support will continue as we rebuild.
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Thank you again for everything you do for the great state of Arkansas.
The Effect of Missouri v. McNeely on DWI Forced Blood Draws in Arkansas
CJI Adds To Online Course Arsenal
Search by Consent of One Resident After Arrest of Other Resident
Sincerely,
Save The Date: Rx Drug Abuse Summit Arkansas Attorney General Dustin McDaniel
ATTORNEY GENERAL
DUSTIN MCDANIEL ARKANSAS
Opinions Corner Opinion No. 2013-115 The Attorney General released an opinion on Jan. 24 to answer questions about who is responsible for investigating allegations of misconduct by law enforcement officers or elected officials. In the opinion, he said a citizen aggrieved by a municipal law enforcement officer’s alleged misconduct can file a complaint either with the police department itself or with the local prosecutor, who may choose to refer the matter to the Arkansas State Police for possible investigation. Opinion 2013-126 In an opinion released on Jan. 13, the Attorney General addressed questions regarding provisions of Act 1183 of 2013, which requires law enforcement agencies to enact policies that prohibit civilians from going on “ride-alongs” with officers, unless specific written approval for that civilian is obtained from the chief law enforcement officer or his or her designee. In the opinion, the Attorney General said he does not interpret Act 1183 to necessarily apply solely to “ride-alongs” or to require a policy that prohibits more than “ride-alongs.” Rather, he said, the Act gives each law enforcement agency some discretion to determine the scope and application of its own policy, essentially by defining the term “civilian passengers.” The opinion also concluded that an agency’s policy that addresses only “ride-alongs” would not clearly violate Act 1183.
Opinion No. 2013-090 The Attorney General released another opinion on Jan. 13 to address whether a municipality or law enforcement agency may lawfully redact personal information from motor vehicle accident reports. In the opinion, he said that traffic accident reports made by Arkansas law enforcement officers are open to public inspection under A.C.A. 27-53-209 and 27-53-305. The federal Driver’s Privacy Protection Act (DPPA, 18 U.S.C. sections 2721 through 2725) must be considered if a report contains personal information (as defined by the DPPA) that was obtained from the Arkansas Office of Motor Vehicles. In the opinion, the Attorney General said his office cannot definitively opine on the application of this federal law. Correction: In the January 2014 10-8 Newsletter, Opinion No. 2013-078 was cited incorrectly. It should have been cited as 2012-078 because the opinion was released in 2012 and not 2013. For more information on these opinions and others, go to www.ArkansasAG.gov.
Never Forgotten – Arkansas Takes Action Event on May 29th By Cindy Murphy Communications Director Arkansas Attorney General’s Office
The Attorney General’s Office, in partnership with other law enforcement agencies, will host its third annual observance dedicated to locating Arkansas’s missing children and adults on May 29th in Little Rock. The “Never Forgotten—Arkansas Takes Action” event was established to raise awareness of issues surrounding missing persons and to honor Arkansas’s missing. The event will be held at the Clear Channel Metroplex, 10800 Colonel Glenn Road, Little Rock. Law Enforcement CLEST Training This year, the morning will be devoted to providing training to our state’s law enforcement community. From 8:30 to 11:30 a.m., Jennifer Schuett will give a presentation on her case along with Dickinson Texas Police Detective Tim Cromie and FBI Special Agent Richard Rennison of Houston. Jennifer was 8 years old in 1990 when she was kidnapped from her Dickinson, Texas, home, raped and left for dead after her throat was slashed. She was eventually discovered and survived. In 2008, Cromie and Rennison took a fresh look at the case. Because of advancements in DNA analysis techniques, the FBI was able to extract DNA from evidence stored in the case.
The trio will share their story with law enforcement, covering the victim’s viewpoint and how to stick with frustrating cold case investigations. Officers who attend the training will earn 3 hours CLEST credit. The training is free, but officers must register online at www.ArkansasAG.gov.
Luncheon At noon, Attorney General Dustin McDaniel will host a luncheon and awards ceremony to honor families of missing children and adults. The luncheon will be an opportunity for families who are still searching and for families who have lost loved ones to come together to support each other. During the luncheon, awards will be presented by Colleen Nick of the Morgan Nick Foundation and General McDaniel. Colleen Nick will present Morgan’s Choice awards to law enforcePage 2
-ment officers for their exceptional search and recovery of missing children in Arkansas. General McDaniel will award the annual Star of Excellence Award to an individual agency that has worked to promote the Attorney General’s missing persons initiative. Jennifer Schuett will be the luncheon keynote speaker. DNA Collection From 2:30 to 7 p.m., families of the missing will have an opportunity to speak directly with local, state and federal law enforcement agents involved in missing persons cases. Event attendees may submit DNA samples to help resolve long-term missing persons cases. Representatives from the Arkansas State Crime Lab, Arkansas Crime Information Center, Arkansas State Police, NamUs (National Missing and Unidentified Persons System) and various law enforcement agencies will be available to collect DNA samples and other vital information such as photos, x-rays and dental records in an effort to update their databases. Law enforcement agencies will also be encouraged to bring cases so they can be entered into NamUs.
conditions in no way indicates that it permits It has been brought to the attention of the Much Ado About Nothing Office of the Prosecutor Coordinator that at more substantial intrusions, or intrusions under The Effect of Missouri v. McNeely on least one hospital in the state has developed a other conditions. DWI Forced Blood Draws in Arkansas Thus, it appears as if the only distinction policy in light of McNeely that it will not
By John M. Snyder Office of the Prosecutor Coordinator A recent U.S. Supreme Court decision regarding the constitutionality of warrantless blood draws has led to some confusion, as is often the case in decisions involving criminal law and procedure. The April 17 holding in Missouri v. McNeely,___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) states: “The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.” The issue of Fourth Amendment DWI forced blood draws was first visited by the U.S. Supreme Court in 1966 in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Then, as now, the Supreme Court held that whether the dissipation of alcohol in a subject’s blood constitutes an exigent or urgent circumstance justifying a warrantless blood draw is to be decided on a case-by-case basis. The Schmerber court stated, “The officer... might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ . . . Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest.” It further held, “We thus conclude that the present record shows no violation of petitioner's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the person is a cherished value of our society. That present record. The integrity of an individual's we today hold that the Constitution does not forbid the States minorintrusions into an individual's body” under stringently limited
between Schmerber and McNeely is that the State of California proved there were pressing circumstance to allow for a warrantless blood draw under those circumstances, and that the State of Missouri did not prove the same regarding McNeely. The rule of law is the same; only the facts are different. Some defense attorneys, however, argue that the Supreme Court held in McNeely that warrantless blood draws in DWI investigations are never appropriate. This simply is not true. Arkansas courts must continue to decide whether the dissipation of alcohol in the blood constitutes an emergency, under the totality of the circumstances, to allow a warrantless blood draw in each particular case. So the question remains, “How does McNeely affect Arkansas law on the subject?” I submit that it has no effect at all. There are no Arkansas cases addressing the issue and the DWI statutes are unclear as to whether a warrant is required in order to draw blood without consent during a DWI investigation. My advice to prosecutors and law enforcement officers before McNeely was decided was to obtain a warrant to draw blood in the absence of consent, or another exception, if at all possible. My advice today remains the same. I recommended the reader obtain a copy of Attorney General Opinion No. 2004-188 and read it closely. Other than statutes, this appears to be the only guidance in Arkansas as it pertains to DWI blood draws.
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allow anyone associated with the hospital to draw blood in the course of a DWI investigation without the consent of the suspect or a warrant. This policy does not seem to be supported by the holding of McNeely. Further, the remedy for an unconstitutional blood draw would be suppression of the evidence. It is not clear how an unconstitutional search would subject the hospital, or any employee who is not a state actor, to any civil or criminal liability. The bottom line is, now, as it always has been, that a warrant OR an exception to the warrant requirement (consent, exigent circumstances, etc.) is necessary in order for officers to request for someone acting under the direction and supervision of a physician to draw blood in the course of a DWI investigation. Whether the dissipation of alcohol constitutes an exigency, and thus an exception to the warrant requirement, must continue to be determined according to the facts of each particular case. John M. Snyder is the DWI/Drug/Asset forfeiture staff attorney and the Arkansas Traffic Safety Resource Prosecutor for the Arkansas Office of the Prosecutor Coordinator.
Arkansas Law Enforcement Records Move Into The 21st Century
CJI Adds To Online Course Arsenal By Dr. Cheryl May Criminal Justice Institute Director
By Ken Jones ALETA Director
The Criminal Justice Institute (CJI) is committed to providing leadership, training and resources to make Arkansas schools safer. This summer, in conjunction with the Arkansas Safe Schools Association, the Arkansas Department of Education, the Office of the Attorney General and the Arkansas Department of Human Services — Division of Behavioral Health Services, CJI will hold the 10th Annual Arkansas Safe Schools Conference. The conference will be held July 21-23 at the Wyndham Riverfront Hotel in North Little Rock. This year's conference will be an exceptional opportunity to receive training on best practices in school safety, security, intervention/prevention and emergency preparedness planning. Registration is now available at www.cji.edu. In other news, CJI is developing three new online programs to assist school resource officers and school personnel in maintaining safe learning environments for Arkansas children. The programs are: Identifying and Preventing Bullying ONLINE; Autism Spectrum Disorders ONLINE; and School Site Assessment ONLINE. These programs are scheduled to be launched this summer. Recently, CJI was honored to partner with the University of Texas at San Antonio Center for Infrastructure Assurance and Security (CIAS) and the University of Memphis Center for Information Assurance to receive a three-year, $800,000 grant to help states and communities prepare for, detect and respond to cyber attacks in a consistent manner. As part of this effort, CJI will receive $360,000 to update and deliver two courses: Comprehensive Cyberterrorism Defense (CCD) and Cyberterrorism First Responder (CFR). Both courses provide counter-cyberterrorism training to technical personnel working within our nation’s critical infrastructures. Additionally, the grant formally establishes the National Cybersecurity Preparedness Consortium, which includes the three aforementioned universities in addition to Texas A&M University Engineering Extension Service (TEEX) and the Norwich University Applied Research Institutes. This results in a more coordinated multi-university program and helps states and communities better prepare for inevitable cyber security incidents. CJI has recently added two new programs to its online lineup of classes. Drug Endangered Children (DEC) Awareness ONLINE examines the history of the DEC national movement, the general history of drug use in the United States, the effects and dangers of children living in homes where drugs are being used, manufactured or sold, drug recognition information and the advantages of local collaboration when dealing with DEC cases. Law Enforcement Response to Persons with Behavioral Health Issues ONLINE is designed to provide a better understanding of individuals suffering from behavioral health issues who may come in contact with the law enforcement community. CJI developed the course in partnership with the Arkansas Association of Chiefs of Police. Keeping officer safety foremost, this course explores policies, procedures, and protocols for officers to follow while dealing with this difficult issue. For more news from the Criminal Justice Institute and to see a complete listing of our programs, visit us online at www.cji.edu. We look forward to serving you!
The Commission on Law Enforcement Standards and Training will see many improvements to services provided to law enforcement officers and agencies in 2014. Since 1975 the Office of Law Enforcement Standards (OLES) has amassed records for over 17,000 law enforcement officersin addition to processing 10,000 forms and requests for services each year. OLES has continued processing and storing these documents, much as it has for the past forty years. However, more modern and efficient methods are currently available. Once we recognized the need to begin storing officer training data and files electronically, we brought a proposal to the Commission to begin the process of obtaining a software solution to accomplish this goal. Attorney General Dustin McDaniel’s office generously funded the project, which culminated in acquiring a software system developed by Envisage Technologies Corporation known as Acadis Readiness Suite. The software is in use by numerous state and federal agencies with similar responsibilities to CLEST. On March 26, the Standards staff received initial training on the Acadis system. On April 1, they began entering new information into the system. The goal is to have the system available to agencies by the end of the summer of 2014. When fully implemented, ALETA and OLES will be capable of not just receiving and storing records but providing a wide range of services to agencies that choose to participate in the online access • Submit and receive documents electronically through the Acadis Portal. A test agency has been selected and will soon begin using the portal to submit officer employment and training documents • Check the records of each of its officers to ensure they have the proper level of certification they need and are entitled to in performing their assigned duties • Evaluate their agency records to ensure compliance with mandated audit requirements • Receive automatic alerts when certifications, such as Radar Operator, are approaching renewal deadlines • View training course information online and enroll students in available courses • Save time and allow agencies to save money on postage costs • Increase accuracy of officer information and training records
In addition, Acadis will allow OLES and ALETA to share information in the same database and reduce the time and duplication of efforts to record officer and training information. Acadis is expected to help CLEST achieve its goal of providing improved services to the law enforcement community and the people of Arkansas. Page 4
Search by Consent of One Resident After Arrest of Another Resident By David Raupp Senior Assistant Attorney General Arkansas Attorney General’s Office In general, police may search property where more than one person lives with consent of only one of the residents. But in 2006, the U.S. Supreme Court held in Georgia v. Randolph that such consent is not valid if another resident who is present objects to the search. When one of the residents objects, a search warrant is required. In February, the Court clarified how police should handle searching property when the resident who objects to the search has been arrested and is no longer on the property. In such a case, the Court said, police can search the property with consent of another resident. The Court decision to revisit Georgia v. Randolph was prompted by a Los Angeles Police investigation in October 2009. In that case, police officers investigating a violent robbery saw a man run into an apartment building and then heard screams from a specific apartment. They knocked on the door, and a woman named Roxanne Rojas answered it. Ms. Rojas was holding a baby and crying. She had bump on her nose and blood on her hand and shirt. Although she told the officers that she had been in a fight, she said no one besides her 4-year-old son was in the apartment. But, suspecting he had assaulted Rojas, they removed him and
arrested him. Later, the robbery victim identified Fernandez, and police charged him in that incident. About an hour after Fernandez’s arrest, an officer returned to the apartment and obtained oral and written consent from Ms. Rojas to search it. The search turned up several items connecting Fernandez to the robbery, as well as a sawed-off shotgun. After his motion to suppress the items seized in the search was denied, Fernandez pleaded no contest to two firearms charges and was convicted of robbery and a battery offense at a jury trial. On appeal, the California Court of Appeal upheld the consent search, concluding that, under Randolph, a co-occupant had to be present to object to a consent search and Fernandez wasnot present when Rojas consented. The U.S. Supreme Court agreed, rejecting Fernandez’s argument that his presence was not necessary because the police were responsible for his absence. The Court observed that, while officers cannot remove a co-occupant to avoid an objection to a consent search, here the officers had not done so. Rather, they had an objective, reasonable basis on which to remove him — his apparent assault on Rojas.
Save the Date: September 9 & 10 2014
arkansas
Rx Drug Abuse
summit
September 9 Ron Robinson Theater Full day of pre-conference workshops, followed by an evening screening of “The Hungry Heart” documentary
September 10 Statehouse Convention Center Formal Summit with keynote lunch and break-out sessions for specialty tracks
Watch ArkansasAG.gov and www.CJI.edu for details
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ATTORNEY GENERAL
DUSTIN MCDANIEL ARKANSAS
323 Center Street, Suite 1100 Little Rock, AR 72201 1 (800) 448-3014
EDITOR CINDY MURPHY Communications Director EDITORIAL BOARD ERIKA GEE Chief of Staff J.P. FRENCH Chief, Special Investigations Division DAVID RAUPP Senior Assistant Attorney General SARAH GIBSON Public Affairs
For a subscription to the 10-8 Newsletter call (501)682-2007 or (800)448-3014 To read the 10-8 online, go to www.ArkansasAG.gov Follow the AG on Twitter: @AttyGenMcDaniel “Like” the Arkansas Attorney General on Facebook