In Service For
Arkansas Law Enforcement
October 2013
Inside this issue:
We’re Back!
Page 2 Recent law-enforcement related opinions.
Page 3 Michigan v. Summers limits search warrants
Page 4 Human Trafficking Act of 2013
Page 5 The latest news from our law enforcement training partners
Dates to remember: October 15-16 Mid-South Financial Crime Summit Little Rock Marriott Contact: Taylor Jackson, 501-376-3741
November 14 Arkansas Children’s Award Dinner Little Rock Embassy Suites 6 p.m. For the Arkansas Sheriffs’ Youth Ranches Call 870-793-6841
Sixth Edition Arkansas Law Enforcement Pocket Manuals are available for reorder. The manuals are a handy way to have Arkansas criminal laws with the latest updates at your fingertips. For copies, please call (800) 448-3014
Dear 10-8 Reader, Our 10-8 newsletter has been one of my favorite ways to share useful and timely information from the Attorney General’s office with law enforcement. I remember enjoying the newsletter when I was in uniform with the Jonesboro Police Department. For that reason, I must apologize for the newsletter’s absence in recent months. We’re back now, though, and we have a lot of ground to cover.
General McDaniel during a recent visit to the Arkansas Sheriffs’ Youth Ranch near Batesville. The AG is excited to serve as Chairman of the 2013 Arkansas Children’s Award Dinner on November 14.
In this issue, you’ll find information on upcoming law enforcement events, articles on notable cases and opinions that may affect you as peace officers. You’ll also learn about the 2013 Outstanding Law Enforcement Officer of the Year. I’ll look forward to seeing you soon! Sincerely,
Dustin McDaniel Arkansas Attorney General Dustin McDaniel
ATTORNEY GENERAL
DUSTIN MCDANIEL ARKANSAS
Opinions Corner
an opinion he released on July 8, 2013. Act 746 of 2013 merely made technical corrections to the law related to a person’s ability to carry a firearm while traveling. It does not permit the open carrying of handguns, the Attorney General explained in the opinion. The point of Act 746 was to define a “journey,” a legal term used in the law. The law allows Arkansas residents to carry a handgun if a person is on a journey, which means “beyond the county in which the person lives.” The law, the opinion said, was meant to allow people to carry a handgun to protect themselves from the dangers of the open road.
Opinion No. 2013-052 The Attorney General released an opinion on July 12, 2013, stating that it’s the responsibility of sheriffs and not the Arkansas Department of Correction to transport state inmates being held in county jails to ADC facilities when space becomes available.
By Cheryl Hall and Cindy Murphy Attorney General’s Office
Opinion No. 2013-060
For 70 years, Arkansas law stated that ADC must take all inmates from the counties to ADC facilities. A law enacted in 2003, however, makes an exception for state inmates being held in county jails due to a shortage of ADC space, saying counties are obligated to take these inmates to ADC facilities once beds are available.
Opinion No. 2013-078
The Attorney General released an opinion on August 5, 2013, stating that All-Terrain Vehicles or ATVs can’t lawfully be driven on The Attorney General released an opinion on July 22, 2013, stating that full-time municipal police officers working 10-hour shifts Arkansas streets and highways. should be granted vacation at the same rate as those working 8-hour In the opinion, he said even drivers of ATVs that have been modified shifts. Arkansas State law ensures that all municipal police officers to meet standards for automobiles, such as upgraded lighting and are allowed at least 15 “working days” of annual vacation with full enhanced safety equipment, can’t drive on roadways. ATVs, regard- pay. less of modifications, likely remain subject to the statutory restrictions set forth in A.C.A. 27-21-106.
Opinion No. 2013-047 Many in Arkansas misinterpreted the General Assembly’s recent changes to the law concerning the possession of firearms as authorizing the “open carry” of firearms. Not so, the Attorney General said in
For more information on these opinions and others, go to www.ArkansasAG.gov.
AR Department of Correction By the Numbers
Number of facilities: 19 Employees: 4,130 Male inmates: 13,179 Female inmates: 1,115 Total population: 14,294 Inmates in county jails: 1,652 Death row population: 37 Executions scheduled: 0 Data provided by ADC on September 25. Population figures change daily
Page 2
Will Jones joins AG’s Cyber Crimes team
William M. Jones
Please help us welcome Will Jones, who recently joined the Attorney General’s staff as the Assistant Attorney General assigned to the Cyber Crimes Unit. He assists the Arkansas Attorney General’s Office Special Investigations Division in the investigation of child pornography across the state of Arkansas. Will, who replaces Bart Dickinson, will be appointed as a special prosecutor to handle the cyber crimes cases that result in an arrest and prosecution or will help prepare a case to be turned over to the elected prosecutor. The Attorney General’s Cyber Crimes Unit is two years old. Will is also an adjunct professor at the University of Arkansas at Little Rock and formerly with the UALR Bowen School of Law. Will is a graduate of Henderson State University and the University of Arkansas School of Law. He began his career as a
prosecutor in 2001 in Crawford County. In May of 2002 he was hired by Sixth Judicial District Prosecuting Attorney Larry Jegley. There, Will spent approximately eight years in the domestic violence and sexual assault unit before becoming division chief over district courts and citizen complaints. As a prosecutor, Will has tried over 120 jury trials most of which were violent or sexual crimes.
AG Cyber Crimes Unit stats Closed cases: 23 Total sentences: 879 years Open cases: 9 Months in operation: 28
U.S. Supreme Court Limits Detentions Incident to Execution of a Search Warrant By Vada Berger Assistant Attorney General Criminal Department More than 30 years ago, in Michigan v. Summers, 452 U.S. 692 (1981), the U.S. Supreme Court held that the Fourth Amendment to the U.S. Constitution allows officers executing a proper search warrant to restrain people present where the warrant is being executed even though the officers lack a reason to arrest them or even suspect that they may be involved in criminal activity or pose dangers to the officers. The Court concluded that restraint during a search is allowed because the inconvenience caused by the restraint is small and because the reasons for allowing it are important. The Court identified three important reasons for law enforcement to restrain people who are present during the execution of a warrant: the interest in reducing the risk of harm to officers by allowing them to have unquestioned command of the scene; the orderly and efficient completion of the search; and the prevention of fleeing in case incriminating evidence is discovered during the search. In the recently decided case of Bailey v. United States, 133 S. Ct. 1031 (2013), the Court held that the rule of Summers did not allow officers to restrain a person who left the premises where the search was conducted before it began and who was more than a mile away when restrained. The Court held that the restraint that far from the search was more inconvenient than restraint at the search itself, particularly when the person is returned to the search scene. The Court said that none of the three lawenforcement reasons for allowing the restraint of people present
during a search applied to persons who had left the scene before it had even begun. The Court explained that there was no risk to officers at the scene posed by someone who had left, that a person not present would not interfere with or aid in a search, and that the potential for fleeing did not, by itself, justify the restraint of a person who was not inside or very close to where the search was being conducted. Ultimately, the Court concluded in Bailey that, because the rule in Summers gives police greater authority to restrain persons than what the Fourth Amendment normally allows, its rule authorizing the restraint of people at a search must be limited to what it called the “immediate vicinity” of the place to be searched. In limiting the holding of Summers, the Court did not provide an exact definition of “immediate vicinity” because the restraint in Bailey, which was more than a mile away from the search, was beyond any reasonable understanding of that phrase. It did, however, helpfully explain that the facts to be considered in deciding whether a restraint had occurred in the “immediate vicinity” included the lawful limits of the place searched, whether the person restrained was within line of sight when restrained, and the ease of re-entry from the person’s location. It also explained that “immediate vicinity” was an idea based on distance and not one based upon time. The Court added that its rule did not prevent officers from restraining people who had left the search scene that they could restrain for other reasons, even on the basis of information discovered in the search at issue, such as because the officers had a basis to arrest them or suspected they were dangerous or involved in criminal activity. Page 3
Human Trafficking Act of 2013 By Lori Kumpuris Deputy Prosecutor Coordinator Arkansas Office of Prosecutor Coordinator The 89th General Assembly passed a comprehensive package of legislation addressing the issue of human trafficking. This bipartisan effort resulted in the passage of three acts, Act 132/133, Act 1157, and Act 1257, all of which address different aspects of this crime. Acts 132 and 133 are identical, with one originating in the House of Representatives and one originating in the Senate. Acts 132 and 133 repealed the current version of Arkansas’ human trafficking law, which was codified at Ark. Code Ann. § 5-11-108 and created a new version, which is codified at Ark. Code Ann. § 5-18-101 et. seq. Under the new version of human trafficking, it is a crime to knowingly recruit, harbor, transport, obtain, entice, solicit, isolate, provide, or maintain a person knowing that the person will subjected to involuntary
servitude. Involuntary servitude is defined as the inducement of a person to engage in labor, services, or commercial sexual activity. Trafficking of persons is a Class A felony unless the victim was minor at the time of the offense and then it is a Class Y felony. The Class Y felony offense of human trafficking is a 70% crime under Ark. Code Ann. § 16-93 -618(a)(1). It is also a crime to patronize a victim of human trafficking. A person commits this offense if he or she knowingly engages in commercial sexual activity with another person knowing that the other person is a victim of human trafficking. This offense is a Class B felony unless the victim was a minor at the time of the offense and then it is a Class A felony. In addition to creating offenses, these acts provide affirmative defenses to sexual solicitation and prostitution where the persons charged with those offenses can show that they are actually victims of human trafficking. The acts also create a State Task
Force for the Prevention of Human Trafficking and a civil cause of action for human trafficking victims. Act 1157 is the second bill in this package of legislation. It requires certain sexually oriented businesses, bus stations, and airports to post information about the National Human Trafficking Resource Center Hotline. Additionally, it amends Ark. Code Ann. § 5-5-201(a) and 5-5-202(b) (2) to add trafficking of persons to the list of offenses allowing forfeiture of assets upon conviction. The last act in this package of legislation is Act 1257. This act is known as the “Safe Harbor Act.” It creates the Safe Harbor Fund and requires persons convicted of trafficking of persons, patronizing a prostitute, or sexual solicitation to pay a $250 fee to this fund. Additionally, this act requires the Department of Human Services to use the money deposited into this fund to provide services and treatment for minor victims of human trafficking.
Nighttime Search Warrants Only Narrowly Permitted By David Raupp Senior Assistant Attorney General Criminal Department On the night of September 4, 2010, police officers got a nighttime search warrant for Mark Tyson’s Jacksonville home on reasonable cause to believe that children might be present during an active meth cook. The officers earlier had seen a male from the trailer throw away several trash bags. They inspected the bags and found meth-lab components and fresh baby diapers. They also had learned from the trailer-park manager that three young children lived at the address. When officers executed the nighttime warrant about 10 p.m., they found Tyson, an active meth lab in the bathroom, and three small, sleeping children. At his trial, the judge suppressed the meth-cook evidence, agreeing with Tyson that none of the three exceptions permitting a nighttime warrant applied. While the Fourth Amendment does not limit when a search warrant can be executed, Arkansas law requires that they must be executed in the daytime, between 6 a.m. and 8 p.m. This long-standing limit has only three exceptions, which permit police to seek and a judge to issue a “nighttime search warrant.” The police must identify for a judge specific facts to show one of three situations: 1) that the place to be searched is difficult of speedy access; 2) the objects to be seized are in danger of imminent removal; or 3) the warrant can only be safely or successfully executed at nighttime or under circumstances difficult to predict accurately. See Arkansas Rule of Criminal Procedure 13.2(c). The Attorney General appealed to the Arkansas Supreme Court, arguing that the safety exception applied because the children’s safety was at risk, while Tyson argued that exception covered only officer safety. The Supreme Court held that the exception was not expressly limited to officer safety, but found that the Page 4
officers’ affidavit did not show sufficient reasonable cause to believe that the children were at risk. Thus, it found that a nighttime warrant should not have issued. However, the Court still reversed the trial judge’s suppression order because the officers relied on the nighttime warrant in good faith. See State v. Tyson, 2012 Ark. 107, 388 S.W.3d 1. Another Arkansas Supreme Court case also illustrates how narrowly the courts apply the exceptions. Kathy Livingston shot and killed her husband Bobby in their Lake Village home on the evening of June 18, 2011. At 6:45 p.m., she called her daughter who lived across the street and told her so. Police arrived before 7 p.m. and found Livingston and Bobby on the kitchen floor, where she had shot herself. Shortly after paramedics took her away, a state police trooper prepared an affidavit for a search warrant. A warrant was issued by 8:44 p.m., and a search began five minutes later. None of the three nighttime exceptions applied, and the trooper had not requested a nighttime warrant. Among other things, the search yielded a bullet from another room and shell casings from the kitchen that helped to show Livingston killed with the intent to commit murder. At trial, Livingston moved to suppress the bullet evidence, and the trial judge agreed with her that the nighttime search violated Rule 13.2(c). But the judge did not suppress the evidence because he found that the officers would have found the bullets anyway, in a later daytime search. On appeal, the Arkansas Supreme Court did not address whether the judge was right about the later search. Instead, the Supreme Court found that, although the evidence was wrongly seized at night, its admission was harmless because other evidence showed Livingston shot her husband with the intent to commit murder, not a lesser offense as she argued to the jury. See Livingston v. State, 2013 Ark. 264.
Training Opportunities Abound at ALETA By Ken Jones ALETA Director The goal of the Commission on Law Enforcement Standards and Training is to provide citizens of Arkansas with officers who have the knowledge and skill to detect, prevent and reduce crime. The Commission achieves these goals in two ways: Training and Regulations. Providing training that stays ahead of trends is key to accomplishing these goals. New ALETA classes on the horizon include: A Tactical Emergency Vehicle Operations Course has been developed and is designed to introduce officers to the concept of using the police vehicle as a tactical platform when dealing with deadly force threats ranging from traffic stops to active shooter situations. A Search and Rescue Course aimed at providing officers with skills to improve outcomes when responding to reports of lost children and adults. Medical-legal training for coroners is being developed. DWI/Standardized Field Sobriety Testing training is planned by ALETA and will be added to the basic training curriculum and offered as a specialized course. Behind the Badge: Survival Training for Women in Law Enforcement will be offered in the near future. ALETA is also working to acquire new training technology as it becomes available. New IR Tactical Equipment has been added that will allow officers to participate in dynamic use of force and firearms accuracy training. This equipment will be utilized in tactical response and active shooter training and may be used in any environment. In addition, a new computer/video based use of force training
system will be purchased in the near future to replace the existing MILO system. Over the next few months, the Arkansas Commission on Law Enforcement Standards and Training, in cooperation with the Arkansas Attorney General’s office, will roll out a new records management system developed by Envisage Technologies of Bloomington, IN called the ACADIS Readiness Suite. Unlike our current system, the ACADIS Suite will also handle the operations of ALETA and provide a secure website for all the agencies in the state to be able to view the training and certification records of current employees, view and register for all training courses offered around the state and submit standards forms electronically. We are very excited about the new opportunities and services this system will allow us to provide law enforcement agencies as we continue our mission to better serve the public. Since my appointment as Director of the Commission on Law Enforcement Standards and Training, several upgrades have been made to our training academy. Our dorms were upgraded and refurbished with new bedding and furniture. The front lobby, receptionist area and hallways were treated with new paint and tile floors. The lobby area restrooms are schedule for upgrades also. The kitchen and dining area have been totally re modeled and food service has been greatly improved. We are grateful to Governor Mike Beebe and Attorney General Dustin McDaniel for providing addition funding to improve your Arkansas Law Enforcement Training Academies. I welcome your ideas in moving the training and professional standards for Arkansas law enforcement officers forward and we appreciate the continued support of the law enforcement community we serve.
Officer Safety Remains a Top Priority at CJI By Dr. Cheryl May CJI Director The driving mission of the Criminal Justice Institute is “Making communities safer by supporting law enforcement professionals through training, education, resources and collaborative partnerships.” We are dedicated to serving Arkansas law enforcement by actively delivering education and training programs that meet the expressed needs of officers throughout the state and building partnerships that allow us to expand the availability of resources for Arkansas law enforcement. One of our most valued partnerships is the one we share with the Arkansas Attorney General’s Office. Our strong collaboration allows the expansion of programs and conferences designed to address critical areas of specialized need in the Arkansas law enforcement community, including prescription drug abatement, safe school initiatives, animal cruelty,
and officer safety. We have some exciting initiatives currently underway that will help expand the scope of our programs and also more effectively communicate the availability of CJI programs and resources for law enforcement. CJI recently launched a new website (www.cji.edu) that features easy-to-find information about all of our classes along with the latest CJI news and announcements for upcoming law enforcement events. To continue to enhance the accessibility of our programs, we are expanding the number of courses that are also available online. We have received very positive feedback on our current list of online courses. Foundations of Supervision is our newest online program. In the coming months, Principles of Supervision, Ethics, Crime Scene First Responder for the Uniformed Officer, and Public Integrity Investigations will also be made available online. We appreciate the great work you do each and every day for your community and are committed to helping you in any way we can.
Page 5
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
2013 Outstanding L a w E n f o rc e m e n t O f f i c e r o f t h e Ye a r Detective Scott Johnson Bryant Police Department On the night of April 2, 2013, Bryant Police Detective Scott Johnson responded to a routine store alarm. He circled the store and checked the doors, finding no suspicious activity. But Scott decided to exit his vehicle after he thought he spotted movement in the shadows of the building. He shined his flashlight into the area, revealing an armed man who quickly opened fire on Scott. Scott calmly returned fire and radioed for backup. Unbeknownst to Scott, the man lurking at the store was wanted for aggravated robbery and first-degree murder in Mattoon, Ill. The suspect died in the exchange, and Scott was shot twice in his hand and once in his shoulder.
Page 6
Attorney General Dustin McDaniel recognized Scott for his outstanding service and bravery during the 2013 Law Enforcement Summit, naming him Outstanding Law Enforcement Officer of the Year. General McDaniel also presented awards to district winners. They were: District 1 Arkansas Game & Fish Wildlife Officer Block Meyer District 2 Jacksonville Police Officer Daniel DiMatteo District 3 Sebastian County Corporal Richard Rivera District 4 Hope Police Officer Scott Hurd
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