Does an Arkansas sheriff's office have to keep evidence collected during a felony investigation even if it has no evidentiary value, or can a court order it released early?

Plain-English summary

A prosecuting attorney asked whether a county sheriff could release items collected in a felony investigation before the statutory retention period ends when the items have no evidentiary value, or whether a court order could shorten that period. The AG answered that A.C.A. § 13-4-409 applies to any "item" held in accordance with, authorized by, or in carrying out a felony case or investigation. Evidentiary weight does not change the retention requirement. He found no law allowing a court to alter the statutory periods.

The applicable period depends on why the sheriff holds the item. For a general felony investigation that never became a case, the statute requires retention until the limitation period for the most serious possible connected crime lapses. Items from investigations of capital murder, first- or second-degree murder, rape, or arson are retained for 99 years. For a felony court case, the opinion quotes two years after final judgment without an appeal, or three years after final judgment and the conclusion of any post-conviction litigation if there is an appeal. Where provisions overlap, the AG says they set minimum periods and the sheriff can use the longest applicable period.

The PDF footnotes supply two rules omitted from the earlier stored text. Footnote 1 says the statute also requires DNA to be held for 50 years under § 13-4-409(c)(2). Footnote 10 quotes § 13-4-410's separate one-year-or-return rule for an item not associated with a criminal investigation or case. These points are ancillary to the prosecutor's question about items held under § 13-4-409.

Once the applicable § 13-4-409 period has lapsed, the AG says a noncontraband item may be returned to its owner and contraband may be disposed of or destroyed.

What this means for you

Sheriff evidence custodians

Classify why an item is held before assigning a retention date: an investigation, a filed felony case, or one of the specified serious-crime investigations. The AG says a lack of evidentiary value does not remove an item held pursuant to a felony matter from § 13-4-409. If two periods may apply, his opinion allows retention through the longest applicable minimum. Check any pending post-conviction litigation before applying the appealed-case period.

Prosecutors, defendants, and property owners

The opinion does not identify an early-release mechanism for a victim's personal effects merely because they were not used as evidence. The AG found no law allowing a court to shorten the statutory retention periods. He distinguishes property held pursuant to a felony matter from items not associated with a criminal investigation or case, which footnote 10 addresses under a different statute.

Common questions

Does an item's lack of evidentiary value let the sheriff return it early? No under the AG's reading if it is held pursuant to a felony case or investigation. He interprets "item" broadly and says its evidentiary weight or relevance is irrelevant to § 13-4-409's retention rule.

How long is an item from a felony court case kept?
The opinion quotes two years after final judgment when there is no appeal. If the conviction is appealed, it quotes three years after final judgment is entered and after post-conviction litigation concludes. A longer applicable investigation period can also govern. The PDF reverses the labels "If appealed" and "If not appealed" above the quoted provisions; the statutory wording and the AG's application state the periods clearly.

What if there was an investigation but no case?
For a general felony not among the specified 99-year crimes, retention runs until the limitation period for the most serious possible connected crime has lapsed.

Does the opinion mention DNA?
Yes, in PDF footnote 1: "the statute at issue also requires DNA to be held for 50 years." The cited provision is A.C.A. § 13-4-409(c)(2).

What if the item is lost-and-found property unrelated to a case? PDF footnote 10 quotes A.C.A. § 13-4-410: an item not associated with a criminal investigation or court case "shall be retained for one (1) year or until the rightful owner reclaims the item."

Can a court shorten the period?
The AG says: "I have found no law that would allow a court to alter the retention periods in the statute." His opinion does not review a particular court order.

Source

• Official Arkansas Attorney General opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/ (Opinion No. 2024-064, July 19, 2024; official four-page PDF, including footnotes 1 and 10)

Original opinion text

Opinion No. 2024-064

July 19, 2024

Mr. Matt Durrett
Prosecuting Attorney, Fourth Judicial District
280 North College Avenue, Suite 301
Fayetteville, Arkansas 72701

Dear Mr. Durrett:

I am writing in response to your request for my opinion on questions concerning the requirements for county sheriff’s offices to retain and dispose of evidence.

Under A.C.A. § 13-4-409, an “item” that is “in the possession of a county sheriff’s office pursuant to a felony” court case or investigation must be retained for a period of time set by statute, depending on the type of potential crime. You indicate that a county sheriff’s office often collects many “items,” such as “a victim’s personal effects,” that have “no evidentiary value [in a case] at all.” You ask whether, under A.C.A. § 13-4-409(a), a sheriff’s office must retain these types of items for the statutorily prescribed time, or whether they can be released under a court order.

RESPONSE

Under A.C.A. § 13-4-409, “items” collected and held by the sheriff’s office “in accordance with,” “as authorized by,” or “in carrying out” a felony court case or investigation must be retained and then later disposed of or returned to the owner in compliance with the applicable statutes. Only after the time periods described in A.C.A. § 13-4-409 “have lapsed” may a “noncontraband” item be returned to “its owner” and a “contraband” item be disposed of or destroyed. I have found no law that would allow a court to alter the retention periods in the statute.

DISCUSSION

1. Arkansas Code Annotated § 13-4-409. Section 13-4-409 addresses the retention and
   disposition requirements for any “item” that is in the “possession of a county sheriff’s Mr. Matt Durrett Prosecuting Attorney, Fourth Judicial District Opinion No. 2024-064 Page 2

office pursuant to” felony criminal investigations or court cases.1 Only after the time periods described in A.C.A. § 13-4-409 “have lapsed” may a “noncontraband” item be returned to “its owner” and a “contraband” item be disposed of or destroyed. 2 I have found no law that would allow a court to alter the retention periods in the statute.

1.1. Specific felony criminal investigations. When any “item” is in the “possession of” a county sheriff’s office “pursuant to” an “investigation of” capital murder, murder in the first degree, murder in the second degree, rape, or arson, it must be “retained for ninety- nine (99) years.”3

1.2. General felony criminal investigations. When any “item” is in the “possession of” a county sheriff’s office “pursuant to” a “felony criminal investigation” of a crime different than those listed above, it must be “retained until the applicable statute of limitation for the most serious possible crime to which it could be connected has lapsed.”4

1.3. Felony court cases.

A. If appealed. When any “item” is in the “possession of” or being held by a county sheriff’s office “pursuant to” a “felony court case,” it must be “retained for a period of two (2) years after the date of the final judgment if there is no appeal of the conviction.”5

B. If not appealed. “If there is an appeal of the conviction to an appellate court,” the “item” in question must “be retained for three (3) years after the final judgment is entered and after the conclusion of any post-conviction litigation.”6

2. “Item” and “pursuant to.” Although undefined in A.C.A § 13-4-409, the word “item”
   commonly means “[a] piece of a whole, not necessarily separated,”7 or “[a] single article

1
Although your opinion only asks about items retained pursuant to investigations and court cases, the statute at issue also requires DNA to be held for 50 years. A.C.A. § 13-4-409 (c)(2). 2 Id. § 13-4-409(d).
3
Id. § 13-4-409(c)(1).
4
Id. § 13-4-409(a).
5
Id. § 13-4-409(b)(1).
6
Id. § 13-4-409(b)(2)(A).
7
Black’s Law Dictionary 996 (11th ed. 2019).
Mr. Matt Durrett
Prosecuting Attorney, Fourth Judicial District
Opinion No. 2024-064
Page 3

or unit in a collection, numeration, or series” or “[a] bit of information; a detail.”8 And the phrase “pursuant to” means “in accordance with,” “as authorized by,” or “in carrying out.”9

So A.C.A. § 13-4-409 applies not only to evidence but also to any objects, information, or details that are held by a county sheriff’s office that were collected and are held “in accordance with,” “as authorized by,” or “in carrying out” a “felony criminal investigation,” “a felony court case,” or an “investigation of” capital murder, murder in the first degree, murder in the second degree, rape, or arson.10 If such an item is being held pursuant to a felony court case or investigation, its evidentiary weight or relevancy is irrelevant under the statute.

The initial step in determining which retention period applies is to ask why a particular “item” is being held: whether it is being held “pursuant to” a (1) “felony criminal investigation,” (2) “a felony court case,” or (3) an “investigation of” capital murder, murder in the first degree, murder in the second degree, rape, or arson.

3. Application. An answer to whether an item best fits under subsection (a), (b), or (c)(1)
   may initially appear unclear because many “items” held by a county sheriff’s office could readily be classified as arising out of both an investigation and a “felony court case,” or as initially being collected for one reason but are now being held for a different one.

One need not resort to the statutory-construction doctrine concerning “broad versus specific” statutes because, in my opinion, A.C.A. § 13-4-409(a), (b), and (c) can be read harmoniously. Those statutory provisions set a minimum duration to retain “items.” Thus, a sheriff’s office can retain an “item” for the longest applicable period—whether that is under subsection (a), (b), or (c)(1)—without violating the shortest applicable period.

If an “item” is being held by a county sheriff’s office because of a “felony criminal investigation” that never developed into a case, and the felony is not one specified in § 13- 4-409(c)(1), the sheriff’s office must retain that item “until the applicable statute of limitations for the most serious possible crime to which it could be connected has lapsed.”

If an item is being held by a county sheriff’s office because of a “felony court case” the sheriff’s office would retain that item for two years after the final judgment, if the case were not appealed, or three years after the final judgment, if the case were appealed, except that:

8
The American Heritage Dictionary 932 (5th ed. 2011).
9
Black’s Law Dictionary 1493 (11th ed. 2019) (defining “pursuant to”); Id. at 1408 (defining “possession” to mean “having or holding property in one’s power”). 10 Cf. A.C.A. § 13-4-410 (providing that “[a]ny item in the possession of a county sheriff’s office that is not associated with a criminal investigation or court case, such as a misplaced or lost-and-found item, shall be retained for one (1) year or until the rightful owner reclaims the item” (emphasis added)). Mr. Matt Durrett Prosecuting Attorney, Fourth Judicial District Opinion No. 2024-064 Page 4

• For general felonies, one would retain the item until the “applicable statute of limitation for the most serious possible crime to which it could be connected” has not yet lapsed, which means the sheriff’s office would wait until that time period (and not the two or three years); or

• For capital murder, murder in the first degree, murder in the second degree, rape, or arson, the sheriff’s office would need to retain the item 99 years.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General