Can a sheriff's office keep tools found on private property and turned over by the property owner for the office's own use?
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This page answers the general question as of 2014. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Representative Douglas House asked AG Dustin McDaniel about a constable who found power tools on his rural private property over a year earlier. The constable turned the tools over to the Pulaski County Sheriff for investigation. The Sheriff's Office could not identify an owner and informed the constable it would retain the tools "for official use." The constable wanted to know whether that was the proper disposition. The AG declined to answer the merits, citing two limits on his office: (1) he cannot act as a finder of fact, which is what classifying the property under common-law categories (lost, mislaid, abandoned, contraband) requires, and (2) he is precluded by A.C.A. § 25-19-701 from engaging in the private practice of law, so he cannot advise the constable on the strength of his individual claim. The AG used the discussion to flag the limited statutory grounds a sheriff has to keep seized property for official use, and the requirement of a court order under A.C.A. § 5-5-101 even when the property qualifies as "contraband."
Currency note
This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
What the AG flagged (even while declining to opine on the merits)
The classification framework. Under Terry v. Lock, 343 Ark. 452 (2001), and Franks v. Pritchett, 88 Ark. App. 243 (2004), Arkansas follows the common-law four-category test for found property: lost, mislaid, abandoned, or treasure trove. Each category has different rules for who has the right to possession. Classification depends on "all the facts and circumstances," which is a question for a finder of fact (typically a court), not the AG.
Limits on a sheriff retaining "contraband" for official use. A.C.A. § 5-5-101(b)(1) defines "contraband" to include articles possessed under circumstances prohibited by law, weapons or instruments used in a felony, and other items designated contraband by law. Subsection (c) says that contraband must be (1) destroyed or (2) upon court order, sold or retained for use by the law enforcement agency responsible for the arrest. The AG noted that the statutory phrase "the arrest" suggests retention is only available for property "seized incident to an arrest." The constable's facts suggested no pending criminal action, so the classification might not even be available.
City limits restriction. Even when contraband is in play, A.C.A. § 24-11-415(a)(1)(A) prohibits a sheriff's department from retaining for official purposes property "confiscated within any city" — that property must be sold at auction or internet auction. So the geographic location of the confiscation matters.
Procedural limits. Even if all the statutory predicates were met, A.C.A. § 5-5-101 requires an "express court order" before a sheriff's department may retain seized property for official use. The AG was not in a position to determine whether such an order had been entered.
Civil remedy. The Arkansas Rules of Criminal Procedure (Rule 15.5) preserve any civil remedy that would otherwise be available. The AG noted that disputes over found property would typically be resolved in a declaratory or injunctive action in circuit court.
Common questions
Q: What are the four common-law categories of found property?
Lost (the true owner unintentionally parted with it and does not know where it is); mislaid (the true owner intentionally placed it somewhere and forgot where); abandoned (the true owner gave it up); and treasure trove (concealed items, typically money, of antiquity). Each category has different rules about who can claim possession against whom.
Q: If the sheriff hasn't gotten a court order, can the sheriff still keep the property?
The opinion casts doubt. The AG noted that A.C.A. § 5-5-101 contemplates court-ordered retention, and that the "seized incident to an arrest" context appears to be required for contraband retention. Without an arrest and a court order, the statutory pathway for the sheriff to keep the tools may not exist.
Q: What about Op. Att'y Gen. 97-136 (the wallet case)?
That earlier opinion applied the same common-law categories to money found in a wallet turned over to police. The opinion concluded that if the wallet was truly "lost," the money belonged to the finder, not the city — subject to the finder's obligation to make reasonable efforts to locate the true owner.
Q: Can the constable just sue the sheriff to get the tools back?
The opinion suggests that is the right path. Arkansas Rule of Criminal Procedure 15.2(f) provides that a dispute over the right to possession of seized property may be remitted to "appropriate civil process for determination of the claims." A circuit court action for declaratory and injunctive relief is the typical vehicle.
Q: Why won't the AG just give the constable an answer?
Two structural reasons. First, the AG's office cannot perform fact-finding. Second, A.C.A. § 25-19-701 prohibits the AG from engaging in the private practice of law, which is what advising a private citizen about the strength of his personal claim would be. The AG can opine on questions of state law for legislators and certain officials, not on the merits of one citizen's particular dispute with a sheriff.
Citations
Statutes and rules
- A.C.A. § 25-19-701 (AG's prohibition on private practice of law)
- A.C.A. § 5-5-101 (disposition of seized property; contraband definitions)
- A.C.A. § 5-5-101(a) (return of property to rightful owner)
- A.C.A. § 5-5-101(b)(1) (definition of contraband)
- A.C.A. § 24-11-415(a)(1)(A) (sheriff cannot retain property confiscated within a city)
- Ark. R. Crim. P. 15.1 through 15.5 (disposition of property seized in criminal cases)
Cases
- Franks v. Pritchett, 88 Ark. App. 243, 197 S.W.3d 5 (2004) (Arkansas Court of Appeals)
- Terry v. Lock, 343 Ark. 452, 27 S.W.3d 202 (2001) (Arkansas Supreme Court)
Prior AG opinions referenced
- Op. Att'y Gen. 97-136, 2007-305, 2009-103
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
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