Could the Pulaski County sheriff keep power tools found on private land and turned over for investigation?
Apply this to your situation
This page answers the general question as of 2014. Ask about yours and see what current Arkansas law means for your facts, with citations you can check.
Plain-English summary
Representative Douglas House asked what should happen to power tools reportedly found on a constable's private land and turned over to the Pulaski County sheriff for investigation. The sheriff's office could not determine their owner and said it would retain them for official use. The AG did not decide whether the sheriff or the finder had a right to the tools.
The AG explained that classifying found property and deciding who may possess it depend on the facts. Quoting the rule discussed in Franks v. Pritchett, he wrote: “The rights of a finder of property depend on how the found property is classified, and the character of the property should be determined by evaluating all the facts and circumstances present in the particular case.” He could not perform that judicial task or advise a private individual on the strength of a claim to the tools.
The opinion also addresses a possible claim that the tools were stolen. Under limited circumstances, a law enforcement department can receive court-ordered use of seized stolen property qualifying as contraband. But the reported facts suggested no pending criminal action in which these tools had been seized. For found property that is not contraband, the AG said the rightful owner or possessor must be determined under the common-law test. He quoted the Criminal Code's general rule that seized property is returned to its rightful owner or possessor except contraband owned by a defendant.
The AG said a dispute over classification or disposition would presumably be resolved through declaratory and injunctive relief in municipal or circuit court. He left the choice of forum and remedy to private counsel. He also said a sheriff's department might avoid litigation by consulting counsel, classifying the property on the full facts, and disposing of it accordingly.
What this means for you
Finders and sheriff's offices
The opinion does not award these tools to either side. The facts of how the tools came to rest on the land and the basis on which the sheriff holds them matter. A sheriff's office considering official use must distinguish an ordinary found-property dispute from the limited court-ordered disposition of seized contraband described by the AG.
Currency note
This opinion was issued in 2014. Check current law and the actual facts before applying its discussion to another property dispute.
Common questions
Did the AG decide that the constable owned the tools?
No. He said the right to possession required factual classification and that he could not advise the constable on an individual property claim.
Did turning the tools over to the sheriff make them contraband?
The opinion does not say so. Its reported facts suggested no pending criminal action in which the tools were seized. The AG said only a finder of fact could determine the sheriff's claim of right.
Can an agency retain seized stolen property for official use?
The AG described a limited path for stolen property that qualifies as contraband: an agency may receive its use by court order. He did not find that these tools met those conditions.
How might a disagreement over possession be resolved?
The AG said a declaratory and injunctive action in municipal or circuit court was a presumptive route, while private counsel would need to assess the proper forum and remedy.
Background and statutory framework
The opinion applies a fact-dependent common-law classification inquiry to found property. It separately notes a Criminal Code rule requiring the return of seized property to the rightful owner or possessor except contraband owned by a defendant. It does not classify the tools, identify a criminal case, or decide the strength of the constable's claim.
Source
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL
Opinion No. 2013-150
March 17, 2014
The Honorable Douglas House
State Representative
8923 Bridge Creek Road
North Little Rock, Arkansas 72120-9469
Dear Representative House:
I am writing in response to your request for my opinion on a question I will paraphrase as follows:
What is the proper disposition of possibly abandoned tools found over a year ago by a citizen on his private property adjacent to a rural county road and subsequently turned over to the county sheriff for investigation? The sheriff's office has reportedly claimed the property for official use.
By way of background, you recite the following facts relating to a constable's reported discovery "[o]ver a year ago" of "a number of power hand tools" on his property:
The tools were found adjacent to a county road on rural real property owned by [the constable]. The position of the tools indicates that a person intentionally threw the tools from the road, across a ditch, and beyond the right-of-way onto [the constable's] land. The identity of the person who deposited the tools is unknown. There was no evidence at the scene to determine whether the tools were stolen or abandoned. Assuming the tools were possibly stolen, [the constable] contacted the Pulaski County Sheriff. A Deputy Sheriff came to [the constable's] home and collected the tools. The Pulaski County sheriff has not been able to determine the owner.
[The constable] has inquired of the Sheriff's Office regarding the disposition of the property. The Sheriff's Office has informed him that ownership of the property will be retained by the Sheriff's Office for official use.
RESPONSE
As Attorney General, I am neither authorized nor equipped to act as a finder of fact, meaning that I cannot determine into what category the found tools fall for purposes of determining who has the right to their possession. I am further unauthorized to engage in the private practice of law, meaning that I cannot advise a private individual regarding the strength of his claim to property reportedly retained by a sheriff's department for official use.
DISCUSSION
In Franks v. Pritchett, the Arkansas Court of Appeals reviewed the common-law standard to determine the right to possession of found property whose ownership is unascertainable. The court prefaced its analysis with the following acknowledgment that the process of classification required in any such inquiry will in all instances be intensely factual:
The rights of a finder of property depend on how the found property is classified, and the character of the property should be determined by evaluating all the facts and circumstances present in the particular case.
As an executive official, I am neither authorized nor equipped to perform the essentially judicial task of classifying such property in order to resolve competing claims thereto. I am further expressly precluded by statute from engaging in the private practice of law — a fact that in itself precludes me from indirectly advising your constable-constituent regarding the strength of his claim to the found power tools.
In an observation possibly intended to question the Sheriff's Office's claim to the property, you declare: "There was no evidence at the scene to determine whether the tools were stolen . . . ." Under certain limited circumstances, property adjudged stolen may indeed be awarded to a law enforcement agency for official use. Specifically, a law enforcement department may by court order be awarded the use of "seized" stolen property that qualifies as "contraband." Your factual recitation, however, suggests that there is no pending criminal action in connection with which the tools might be characterized as having been "seized" and hence no occasion for a court to dispose of the tools as "contraband."
Only a finder of fact could determine under what claim of right the sheriff's department is currently holding the property. As a general proposition, with respect to found property that is not contraband, determining the "rightful owner or possessor" would in each instance entail applying the common-law test for right to possession. This principle applies even to noncontraband property seized for use in a criminal proceeding, as the following provision in the Criminal Code reflects: "Any seized property shall be returned to the rightful owner or possessor of the seized property except contraband owned by a defendant."
Finally, any dispute regarding the appropriate classification or disposition of the property at issue would presumably be resolved in an action for declaratory and injunctive relief in municipal or circuit court. For reasons discussed above, however, determining the availability or propriety of any particular forum or remedy is a matter for determination by private legal counsel, not by this office. I will add only that a sheriff's department in custody of such property, presumably in consultation with counsel acquainted with all of the facts, might potentially avoid litigation by classifying the property using the criteria discussed above and disposing of it accordingly.
Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.
Sincerely,
DUSTIN McDANIEL
Attorney General
DM/JHD:cyh
What does Arkansas law say today, for your facts?
This opinion is from 2014. Ezel checks the current Arkansas statutes and case law, applies them to your situation, and cites what it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace